4 
B51T 


UNIVERSITY  OF  CALIFORNIA 
LOS  ANGELES 


TRIAL  OF  THE  CONSPIRATORS  FOR  THE  ASSASSINATION  OF 
PRESIDENT  LINCOLN,  &c, 


ARGUMENT 


OP 


JOHN  A.  BINGHAM, 

SPECIAL  JUDGE  ADVOCATE, 


IN   REPLY  TO  TITE 


ARGUMENTS  OF  THE  SEVERAL  COUNSEL  FOR  MARY  E.  SURRATT, 

DAVID  E.  HEROLD,  LEWIS  PAYNE,  GEORGE  A.  ATZERODT, 

MICHAEL  O'LAUGHLIN,  SAMUEL  A.  MUDD,  EDWARD 

SPANGLER,  AND  SAMUEL  ARNOLD,  CHARGED 

WITH  CONSPIRACY  AND  THE  MURDER 

OF  ABRAHAM  LINCOLN,  LATE 

PRESIDENT    OF    THE 

UNITED  STATES. 


Delivered  June  27  and  28,  1S65,  before  the  Military 
Commission,  Washington,   O.  t  . 


WASHINGTON: 

GOVERNMENT    PRINTING    OFFICE. 

1865. 


\ 


t: 

ARGUMENT 


JOHN   A.    BINGH  AM, 

SPECIAL  JUDGE  ADVOCATE 

IN  REPLY  TO 

THE  SEVERAL  ARGUMENTS  IN  DEFENCE  OP  MARY  E.  SURRATT  AND 
OTHERS,  CHARGED  WITH  CONSPIRACY  AND  THE  MURDER 
OF  ABRAHAM  LINCOLN,  LATE  PRESIDENT  OF 
THE  UNITED  STATES,  &c. 


MAY  IT  PLEASE  THE  CouET  :  The  conspiracy  here  charged  and  speci- 
.  fied,  and  the  acts  alleged  to  have  been  committed  in  pursuance  thereof, 
and  with  the  intent  laid,  constitute  a  crime  the  atrocity  of  which  has 
sent  a  shudder  through  the  civilized  world.  All  that  was  agreed 
upon  and  attempted  by  the  alleged  inciters  and  instigators  of  this 
crime  constitutes  a  combination  of  atrocities  with  scarcely  a  parallel 
in  the  annals  of  the  human  race.  Whether  the  prisoners  at  your  bar 
are  guilty  of  the  conspiracy  and  the  acts  alleged  to  have  been  done 
in  pursuance  thereof,  as  set  forth  in  the  charge  and  specification,  is  a 
question  the  determination  of  which  rests  solely  with  this  honorable 
court,  and  in  passing  upon  which  this  court  are  the  sole  judges  of  the 
law  and  the  fact. 

In  presenting  my  views  upon  the  questions  of  law  raised  by  the 
several  counsel  for  the  defence,  and  also  on  the  testimony  adduced 
for  and  against  the  accused,  I  desire  to  be  just  to  them,  just  to  you, 
just  to  my  country,  and  just  to  my  own  convictions.  The  issue  joined 
involves  the  highest  interests  of  the  accused,  and,  in  my  judgment, 
the  highest  interests  of  the  whole  people  of  the  United  States. 

It  is  a  matter  of  great  moment  to  all  the  people  of  this  country 
that  the  prisoners  at  your  bar  be  lawfully  tried  and  lawfully  convicted 
or  acquitted.  A  wrongful  and  illegal  conviction  or  a  wrongful  and 
illegal  acquittal  upon  this  dread  issue  would  impair  somewhat  the 
security  of  every  man's  life,  and  shake  the  stability  of  the  republic. 

467023 


4 

The  crime  charged  and  specified  upon  your  record  i$  not  simply 
the  crime  of  murdering  a  human  being,  but  it  is  the  crime  of  killing 
and  murdering  on  the  Uth  day  of  April,  A.  D.  1865,  within  the  mili- 
tary department  of  Washington  and  the  intrenched  lines  thereof,  Abra- 
ham Lincoln,  then  President  of  the  United  States,  and  commander- 
in-chief  of  the  army  and  navy  thereof ;  and  then  and  there  assault- 
ing, with  intent  to  kill  and  murder,  William  H.  Seward,  then  Secre- 
tary of  State  of  the  United  States  ;  and  then  and  there  lying  in  wait 
to  kill  and  murder  Andrew  Johnson,  then  Vice  President  of  the  United 
States,  and  Ulysses  S.  Grant,  then  lieutenant  general  and  in  command 
of  the  armies  of  the  United  States,  in  pursuance  of  a  treasonable 
conspiracy  entered  into  by  the  accused  with  one  John  Wilkes  Booth, 
and  John  H.  Surratt,  upon  the  instigation  of  Jefferson  Davis,  Jacob 
Thompson,  and  George  N.  Sanders  and  others,  with  intent  thereby 
to  aid  the  existing  rebellion  and  subvert  the  Constitution  and  laws  of 
the  United  States. 

The  rebellion,  in  aid  of  which  this  conspiracy  was  formed  and  this 
great  public  crime  committed,  was  prosecuted  for  the  vindication  of 
no  right,  for  the  redress  of  no  wrong,  but  was  itself  simply  a  criminal 
conspiracy  and  gigantic  assassination.  In  resisting  and  crushing  this 
rebellion  the  American  people  take  no  step  backward,  and  cast  no 
reproach  upon  their  past  history.  That  people  now,  as  ever,  proclaim 
the  self-evident  truth  that  whenever  government  becomes  subversive 
of  the  ends  of  its  creation,  it  is  the  right  and  duty  of  the  people  to 
alter  or  abolish  it;  but  during  these  four  years  of  conflict  they  have 
as  clearly  proclaimed,  as  was  their  right  and  duty,  both  by  law  and 
by  arms,  that  the  government  of  their  own  choice,  humanely  and 
wisely  administered,  oppressive  of  none  and  just  to  all,  shall  not  be 
overthrown  by  privy  conspiracy  or  armed  rebellion. 

What  wrong  had  this  government  or  any  of  its  duly  constituted 
agents  done  to  any  of  the  guilty  actors  in  this  atrocious  rebellion? 
They  themselves  being  witnesses,  the  government  which  they  as- 
sailed had  done  no  act,  and  attempted  no  act,  injurious  to  them,  or 
in  any  sense  violative  of  their  rights  as  citizens  and  men;  and  yet  for 
four  years,  without  cause  of  complaint  or  colorable  excuse,  the  incit- 
ers  and  instigators  of  the  conspiracy  charged  upon  your  record  have, 
by  armed  rebellion,  resisted  the  lawful  authority  of  the  government, 
and  attempted  by  force  of  arms  to  blot  the  republic  from  the  map  of 
nations.  Now  that  their  battalions  of  treason  are  broken  and  flying 
before  the  victorious  legions  of  the  republic,  the  chief  traitors  in  this 
great  crime  against  your  government  secretly  conspire  with  their 


hired  confederates  to  achieve  by  assassination,  if  possible,  what  they 
have  in  vain  attempted  by  wager  of  battle — the  overthrow  of  the 
government  of  the  United  States  and  the  subversion  of  its  Constitu- 
tion and  laws.  It  is  for  this  secret  conspiracy  in  the  interest  of  the 
rebellion,  formed  at  the  instigation  of  the  chiefs  in  that  rebellion, 
and  in  pursuance  of  which  the  acts  charged  and  specified  are  alleged 
to  have  been  done  and  with  the  intent  laid,  that  the  accused  are 
upon  trial. 

The  government  in  preferring  this  charge  does  not  indict  the  whole 
people  of  any  State  or  section,  but  only  the  alleged  parties  to  this  un- 
natural and  atrocious  conspiracy  and  crime.  The  President  of  the 
United  States,  in  the  discharge  of  his  duty  as  commander-in-chief  of 
the  army,  and  by  virtue  of  the  power  vested  in  him  by  the  Constitu- 
tion and  laws  of  the  United  States,  has  constituted  you  a  military 
court,  to  hear  and  determine  the  issue  joined  against  the  accused, 
and  has  constituted  you  a  court  for  no  other  purpose  whatever.  To 
this  charge  arid  specification  the  defendants  have  pleaded,  first,  that 
this  court  has  no  jurisdiction  in  the  premises;  and,  second,  not  guilty. 
As  the  court  has  already  overruled  the  plea  to  the  jurisdiction,  it 
would  be  passed  over  in  silence  by  me  but  for  the  fact,  that  a  grave 
and  elaborate  argument  has  been  made  by  counsel  for  the  accused, 
not  only  to  show  the  want  of  jurisdiction,  but  to  arraign  the  President 
of  the  United  States  before  the  country  and  the  world  as  a  usurper  of 
power  over  the  lives  and  the  liberties  of  the  prisoners.  Denying  the 
authority  of  the  President  to  constitute  this  commission  is  an  aver- 
ment that  this  tribunal  is  not  a  court  of  justice,  has  no  legal  existence, 
and  therefore  no  power  to  hear  and  determine  the  issue  joined.  The 
learned  counsel  for  the  accused,  when  they  make  this  averment  by 
way  of  argument,  owe  it  lo  themselves  and  to  their  country  to  show 
how  the  President  could  otherwise  lawfully  and  efficiently  discharge 
the  duty  enjoined  upon  him  by  his  oath  to  protect,  preserve,  and  de- 
fend the  Constitution  of  the  United  States,  and  to  take  care  that  the 
laws  be  faithfully  executed. 

An  existing  rebellion  is  alleged  and  not  denied.  It  is  charged  that 
in  aid  of  this  existing  rebellion  a  conspiracy  was  entered  into  by  the 
accused,  incited  and  instigated  thereto  by  the  chiefs  of  this  rebellion, 
to  kill  and  murder  the  executive  officers  of  the  government,  and  the 
commander  of  the  armies  of  the  United  States,  and  that  this  conspi- 
racy was  partly  executed  by  the  murder  of  Abraham  Lincoln,  and  by 
a  murderous  assault  upon  the  Secretary  of  State;  and  counsel  reply, 
by  elaborate  argument,  that  although  the  facts  be  as  charged,  though 


6 

the  conspirators  be  numerous  and  at  large,  able  and  eager  to  com- 
plete the  horrid  work  of  assassination  already  begun  within  your 
military  encampment,  yet  the  successor  of  your  murdered  President 
is  a  usurper  if  he  attempts  by  military  force  and  martial  law,  as  com- 
mander-in-chief,  to  prevent  the  consummation  of  this  traitorous  con- 
spiracy in  aid  of  this  treasonable  rebellion.  The  civil  courts,  say 
the  counsel,  are  open  in  the  District.  I  answer,  they  are  closed 
throughout  half  the  republic,  and  were  only  open  in  this  District 
on  the  day  of  this  confederation  and  conspiracy,  on  the  day  of  the 
traitorous  assassination  of  your  President,  and  are  only  open 
at  this  hour,  by  force  of  the  bayonet.  Does  any  man  suppose  that  if 
the  military  forces  which  garrison  the  intrenchments  of  your  cap- 
ital, fifty  thousand  strong,  were  all  withdrawn,  the  rebel  bands 
who  this  day  infest  the  mountain  passes  in  your  vicinity  would  allow 
this  court,  or  any  court,  to  remain  open  in  this  District  for  the  trial 
of  these  their  confederates,  or  would  permit  your  executive  officers  to 
discharge  the  trust  committed  to  them,  for  twenty-four  hours? 

At  the  time  this  conspiracy  was  entered  into,  and  when  this  court 
was  convened  and  entered  upon  this  trial,  the  country  was  in  a  state 
of  civil  war.  An  army  of  insurrectionists  have,  since  this  trial  begun, 
shed  the  blood  of  Union  soldiers  in  battle.  The  conspirator,  by 
whose  hand  his  co-conspirators,  whether  present  or  absent,  jointly 
murdered  the  President  on  the  14th  of  last  April,  could  not  be 
and  was  not  arrested  upon  civil  process,  but  was  pursued  by  the 
military  power  of  the  government,  captured,  and  slain.  Was  this 
an  act  of  usurpation? — a  violation  of  the  right  guaranteed  to  that 
fleeing  assassin  by  the  very  Constitution  against  which  and  for  the 
subversion  of  which  he  had  conspired  and  murdered  the  President  ? 
Who  in  all  this  land  is  bold  enough  or  base  enough  to  assert  it  ? 

I  would  be  glad  to  know  by  what  law  the  President,  by  a  military 
force,  acting  only  upon  his  military  orders,  is  justified  in  pursuing, 
arresting,  and  killing  one  of  these  conspirators,  and  is  condemned  for 
arresting  in  like  manner,  and  hy  his  order  subjecting  to  trial,  accord- 
ing to  the  laws  of  war,  any  or  all  of  the  other  parties  to  this  same 
damnable  conspiracy  and  crime,  by  a  military  tribunal  of  justice— a 
tribunal,  I  may  be  pardoned  for  saying,  whose  integrity  and  impar- 
tiality are  above  suspicion,  and  pass  unchallenged  even  by  the 
accused  themselves. 

The  argument  against  the  jurisdiction  of  this  court  rests  upon  the 
assumption  that  even  in  time  of  insurrection  and  civil  war,  no  crimes 


are  cognizable  and  punishable  by  military  commission  or  court-martial, 
save  crimes  committed  in  the  military  or  naval  service  of  the  United 
States,  or  in  the  militia  of  the  several  States  when  called  into  the 
actual  service  of  the  United  States.  But  that  is  not  all  the  argument : 
it  affirms  that  under  this  plea  to  the  jurisdiction,  the  accused  have 
the  right  to  demand  that  this  court  shall  decide  that  it  is  not  a  ju- 
dicial tribunal  and  has  no  legal  existence. 

This  is"a  most  extraordinary  proposition — that  the  President,  under 
the  Constitution  and  laws  of  the  United  States,  was  not  only  not  au- 
thorized but  absolutely  forbidden  to  constitute  this  court  for  the 
trial  of  the  accused,  and,  therefore,  the  act  of  the  President  is  void, 
and  the  gentlemen  who  compose  the  tribunal  without  judicial  authority 
or  power,  and  are  not  in  fact  or  in  law  a  court. 

That  I  do  not  misstate  what  is  claimed  and  attempted  to  be  estab- 
lished on  behalf  of  the  accused,  I  ask  the  attention  of  the  court  to 
the  following  as  the  gentleman's  (Mr.  Johnson's)  propositions  : 

That  Congress  has  not  authorized,  and,  under  the  Constitution, 
cannot  authorize  the  appointment  of  this  commission. 

That  this  commission  has,  "as  a  court,  no  legal  existence  or  au- 
thority," because  the  President,  who  alone  appointed  the  commission, 
has  no  such  power. 

That  his  act  "is  a  mere  nullity — the  usurpation  of  a  power  not 
vested  in  the  Executive,  and  conferring  ilo  authority  upon  you." 

We  have  had  no  common  exhibition  of  law  learning  in  this  De- 
fence, prepared  by  a  Senator  of  the  United  States ;  but  with  all  his 
experience,  and  all  his  learning,  and  acknowledged  ability,  he  has 
failed,  utterly  failed,  to  show  how  a  tribunal  constituted  and  sworn, 
as  this  has  been,  to  duly  try  and  determine  the  charge  and  specifica- 
tion against  the  accused,  and  by  its  commission  not  authorized 
to  hear  or  determine  any  other  issues  whatever,  can  rightfully  en- 
tertain, or  can  by  any  possibility  pass  upon,  the  proposition  pre- 
sented by  this  argument  of  the  gentleman  for  its  consideration. 

The  members  of  this  court  are  officers  in  the  army  of  the 
United  States,  and  by  order  of  the  President,  as  Commander-in- 
Chief,  are  required  to  discharge  this  duty,  and  are  authorized  in  this 
capacity  to  discharge  no  other  duty,  to  exercise  no  other  judicial 
power.  Of  course,  if  the  commission  of  the  President  constitutes 
this  a  court  for  the  trial  of  this  case  only,  as  such  court  it  is  compe- 
tent to  decide  all  questions  of  law  and  fact  arising  in  the  trial  of  the 
case.  But  this  court  has  no  power,  as  a  court,  to  declare  the  au- 
thority by  which  it  was  constituted  null  and  void,  and  the  act  of  ttie 


8 

President  a  mere  nullity,  a  usurpation.  Has  it  been  shown  by  the 
learned  gentleman,  who  demands  that  this  court  shall  so  decide,  that 
officers  of  the  army  may  lawfully  and  constitutionally  question  in  this 
manner  the  orders  of  their  Commander-in- Chief,  disobey,  set  them 
aside,  and  declare  them  a  nullity  and  a  usurpation  ?  Even  if  it  be  con- 
ceded that  the  officers  thus  detailed  by  order  of  the  Commander-in  - 
Chief  may  question  and  utterly  disregard  his  order  and  set  aside  his 
authority,  is  it  possible,  in  the  nature  of  things,  that  any  body  of  men, 
constituted  and  qualified  as  a  tribunal  of  justice,  can  sit  in  judgment 
upon  ihe  proposition  that  they  are  not  a  court  for  any  purpose,  and 
finally  decide  judicially,  as  a  court,  that  the  government  which  ap- 
pointed them  was  without  authority?  Why  not  crown  the  absurdity 
of  this  proposition  by  asking  the  several  members  of  this  court  to 
determine  that  they  are  not  men— living,  intelligent,  responsible 
men  !  This  would  be  no  more  irrational  than  the  question  upon  which 
they  are  asked  to  pass.  How  can  any  sensible  man  entertain  it? 
Before  he  begins  to  reason  upon  the  proposition  he  must  take  for 
granted,  and  therefore  decide  in  advance,  the  very  question  in  dis- 
pute, to  wit,  his  actual  existence. 

So  with  the  question  presented  in  this  remarkable  argument  for 
the  defence  :  before  this  court  can  enter  upon  the  inquiry  of  the  want 
of  authority  in  the  President  to  constitute  them  a  court,  they  must 
take  for  granted  and  decide  the  very  point  in  issue,  that  the  President 
had  the  authority,  and  that  they  are  in  law  and  in  fact  a  judicial 
tribunal ;  and  having  assumed  this,  they  are  gravely  asked,  as  such 
judicial  tribunal,  to  finally  and  solemnly  decide  and  declare  that  they 
are  not  in  fact  or  in  law  a  judicial  tribunal,  but  a  mere  nullity  and 
nonentity.  A  most  lame  and  impotent  conclusion  I 

As  the  learned  counsel  seems  to  have  great  reverence  for  judi- 
cial authority,  and  requires  precedent  for  every  opinion,  I  may 
be  pardoned  for  saying  that  the  objection  which  I  urge,  against 
the  possibility  of  any  judicial  tribunal,  after  being  officially  quali- 
fied as  such,  entertaining,  much  less  judicially  deciding,  the  pro- 
position that  it  has  no  legal  existence  as  a  court,  and  that  the 
appointment  was  a  usurpation  and  without  authority  of  law,  has  been 
solemnly  ruled  by  the  Supreme  Court  of  the  United  States. 
^  That  court  say  :  "The  acceptance  of  the  judicial  office  is  a  recogni- 
tion of  the  authority  from  which  it  is  derived.  If  a  court  should  enter 
upon  the  inquiry  (whether  the  authority  of  the  government  which 
established  it  existed,)  and  should  come  to  the  conclusion  that  the 
government  under  which  it  acted  had  been  put  aside,  it  would  cease 


9 

to  be  a  court  and  be  incapable  of  pronouncing  a  judicial  decision  upon 
the  question  it  undertook  to  try.  If  it  decides  at  all,  as  a  court,  it 
necessarily  affirms  the  existence  and  authority  of  the  government 
under  which  it  is  exercising  judicial  power.": — (Luther  vs.  Borden,  7 
Howard,  40.) 

That  is  the  very  question  raised  by  the  learned  gentleman  in  his 
argument — that  there  was  no  authority  in  the  President,  by  whose 
act  alone  this  tribunal  was  constituted,  to  vest  it  with  judicial  power 
to  try  this  issue  ;  and  by  the  order  upon  your  record,  as  has  already 
been  shown,  if  you  have  no  power  to  try  this  issue  for  want  of  author- 
ity in  the  Commander*in- Chief  to  constitute  you  a  court,  you  are  no 
court,  and  have  no  power  to  try  any  issue,  because  his  order  limits 
you  to  this  issue,  and  this  alone. 

It  requires  no  very  profound  legal  attainments  to  apply  the  ruling 
of  the  highest  judicial  tribunal  of  this  country,  just  cited,  to  the 
point  raised,  not  by  the  pleadings,  but  by  the  argument.  This  court 
exists  as  a  judicial  tribunal  by  authority  only  of  the  President  of  the 
United  States  ;  the  acceptance  of  the  office  is  an  acknowledgment  of 
the  validity  of  the  authority  conferring  it,  and  if  the  President  had 
no  authority  to  order,  direct,  and  constitute  this  court  to  try  the  ac- 
cused, and,  as  is  claimed,  did,  in  so  constituting  it,  perform  an  uncon- 
stitutional and  illegal  act,  it  necessarily  results  that  the  order  of  the 
President  is  void  and  of  no  effect;  that  the  order  did  not  and  could 
not  constitute  this  a  tribunal  of  justice,  and  therefore  its  members 
are  incapable  of  pronouncing  a  judicial  decision  upon  the  question 
presented. 

There  is  a  marked  distinction  between  the  question  here 
presented  and  that  raised  by  a  plea  to  the  jurisdiction  of 
a  tribunal  whose  existence  as  a  court  is  neither  questioned 
nor  denied.  Here  it  is  argued,  through  many  pages,  by  a  learned 
Senator,  and  a  distinguished  lawyer,  that  the  order  of  the  President, 
by  whose  authority  alone  this  court  is  constituted  a  tribunal  of  mili- 
tary justice,  is  unlawful;  if  unlawful  it  is  void  and  of  no  effect,  and 
has  created  no  court;  therefore  this  body,  not  being  a  court,  can  have 
no  more  power  as  a  court  to  decide  any  question  whatever  than  have  its 
individual  members  power  to  decide  that  they  as  men  do  not  in  fact 
exist. 

It  is  a  maxim  of  the  common  law — the  perfection  of  human  reason — 
that  what  is  impossible  the  law  requires  of  no  man. 

How  can  it  be  possible  that  a  judicial  tribunal  can  decide  the 


10 

question  that  it  does  not  exist,  any  more  than  that  a  rational  man  can 
decide  that  he  does  not  exist? 

The  absurdity  of  the  proposition  so  elaborately  urged  upon  the 
consideration  of  thi&  court  cannot  be  saved  from  the  ridicule  and  con- 
tempt of  sensible  men  by  the  pr-etence  that  the  court  is  not  asked 
judicially  to  decide  that  it  is  not  a  court,  but  only  that  it  has  no 
jurisdiction;  for  it  is  a  fact  not  to  be  denied  that  the  whole  argument 
for  the  defence  on  this  point  is  that  the  President  had  not  the  law- 
ful authority  to  issue  the  order  by  which  alone  this  court  is  constitu- 
ted, and  that  the  order  for  its  creation  is  null  and  void. 

Gentlemen  might  as  well  ask  the  Supreme  CourfoT  the  United 
States  upon  a  plea  to  the  jurisdiction  to  decide,  as  a  court,  that  the 
President  had  no  lawful  authority  to  nominate  the  judges  thereof 
severally  to  the  Senate,  and  that  the  Senate  had  no  lawful  authority 
to  advise  and  consent  to  their  appointment,  as  to  ask  this  court  to 
decide,  as  a  court,  that  the  order  of  the  President  of  the  United  States 
constituting  it  a  tribunal  for  the  sole  purpose  of  this  trial  was  not 
only  without  authority  of  law,  but  against  and  in  violation  of  law.  If 
this  court  is  not  a  lawful  tribunal,  it  has  no  existence,  and  can  no 
more  speak  as  a  court  than  the  dead,  much  less  pronounce  the  judg- 
ment required  at  its  hands — that  it  is.  not  a  court,  and  that  the  Pres- 
ident of  the  United  States,  in  constituting  it  such  to  try  the  question 
upon  the  charge  and  specification  preferred,  has  transcended  his 
authority,  and  violated  his  oath  of  office. 

Before  passing  from  the  consideration  of  the  proposition  of  the 
learned  senator,  that  this  is  not  a  court,  it  is  fit  that  I  should  notice 
that  another  of  the  counsel  for  the  accused  (Mr.  Ewing)  has  also  ad- 
vanced the  same  opinion,  certainly  with  more  directness  and  candor, 
and  without  any  qualification.  His  statement  is,  "You,"  gentlemen, 
"are  no  court  under  the  Constitution."  This  remark  of  the  gentle- 
man cannot  fail  to  excite  surprise,  when  it  is  remembered  that  the 
gentleman,  not  many  months  since,  was  a  general  in  the  service  of 
the  country,  and  as  such  in  his  department  in  the  west  proclaimed 
and  enforced  martial  law  by  the  constitution  of  military  tribunals  for 
the  trial  of  citizens  not  in  the  land  or  naval  forces,  but  who  were 
guilty  of  military  offences,  for  which  he  deemed  them  justly  punish- 
able before  military  courts,  and  accordingly  he  punished  them.  Is 
the  gentleman  quite  sure,  when  that  account  comes  to  be  rendered 
for  these  alleged  unconstitutional  assumptions  of  power,  that  he  will 
not  have  to  answer  for  more  of  these  alleged  violations  of  the  rights 
of  citizens  by  illegal  arrests,  convictions,  and  executions,  than  any  of 


11 

the  members  of  this  court?  In  support  of  his  opinion  that  this  is  no 
court,  the  gentleman  cites  the  3d  article  of  the  Constitution,  which 
provides  "that  the  judicial  power  of  the  United  States  shall  be  vest- 
ed in  one  supreme  court,  and  such  inferior  courts  as  Congress  may 
establish,"  the  judges  whereof  "shall  hold  their  offices  during  good 
behavior." 

It  is  a  sufficient  answer  to  say  to  the  gentleman,  that  the  power  of 
this  government  to  try  and  punish  military  offences  by  military  tribu- 
nals is  no  part  of  the  "judicial  power  of  the  United  States,"  under 
the  3d  article  of  the  Constitution,  but  a  power  conferred  by  the  8th 
section  of  the  1st  article,  and  so  it  has  been  ruled  by  the  Supreme  Court 
in  Dyres  vs.  Hoover,  20  Howard,  78.  If  this  power  is  so  conferred 
by  the  8th  section,  a  military  court  authorized  by  Congress,  and  con- 
stituted as  this  has  been,  to  'try  all  persons  for  military  crimes  in 
time  of  war,  though  not  exercising  "the  judicial  power"  provided 
for  in  the  3d  article,  is  nevertheless  a  court  as,  constitutional  as  the 
Supreme  Court  itself.  The  gentleman  admits  this  to  the  extent  of 
the  trial  by  courts-martial  of  persons  in  the  military  or  naval  ser- 
vice, and  by  admitting  it  he  gives  up  the  point.  There  is  no  express 
grant  for  any  such  tribunal,  and  the  power  to  establish  such  a  court, 
therefore,  is  implied  from  the  provisions  of  the  8th  section,. 1st  article, 
that  "  Congress  shall  have  power  to  provide  and  maintain  a  navy," 
and  also  ' '  to  make  rules  for  the  government  of  the  land  and  naval 
forces."  From  these  grants  the  Supreme  Court  infer  the  power  to 
establish  courts- martial,  and  from  the  grants  in  the  same  8th  section, 
as  I  shall  notice  hereafter,  that  "  Congress  shall  have  power  to  de- 
clare war,"  and  "to  pass  all  laws  necessary  and  proper  to  carry  this 
and  all  other  powers  into  effect,"  it  is  necessarily  implied  that  in 
time  of  war  Congress  may  authorize  military  commissions,  to  try  all 
crimes  committed  in  aid  of  the  public  enemy,  as  such  tribunals  are 
necessary  to  give  effect  to  the  power  to  make  war  and  suppress  insur- 
rection. 

Inasmuch  as  the  gentleman  (Gen.  Ewing,)  for  whom,  personally,  I 
have  a  high  regard  as  the  military  commander  of  a  western  depart- 
ment, made  a  liberal  exercise,  under  the  order  of  the  Commauder- 
in-Chief  of  the  army,  of  this  power  to  arrest  and  try  military  of- 
fenders not  in  the  land  or  naval  forces  of  the  United  States,  and 
inflicted  upon  them,  as  I  am  informed,  the  extreme  penalty  of  the 
law,  by  virtue  of  his  military  jurisdiction,  I  wish  to  know  whether  he 
proposes,  by  his  proclamation  of  the  personal  responsibility  awaiting 
all  such  usurpations  of  judicial  authority,  that  he  himself  shall  be 


subjected  to  the  same  stern  judgment  which  he  invokes  against 
others— that,  in  short,  he  shall  be  drawn  and  quartered  for  inflicting 
the  extreme  penalties  of  the  law  upon  citizens  of  the  United  States 
in  violation  of  the  Constitution  and  laws  of  his  country  ?  I  trust  that 
his  error  of  judgment  in  pronouncing  this  military  jurisdiction  a  usur- 
pation and  violation  of  the  Constitution  may  not  rise  up  in  judgment 
to  condemn  him,  and  that  he  may  never  be  subjected  to  pains  and 
penalties  for  having  done  his  duty  heretofore  in  exercising  this  right- 
ful authority,  and  in  bringing  to  judgment  those  who  conspired 
against  the  lives  and  liberties  of  the  people. 

Here  I  might  leave  this  question,  committing  it  to  the  charitable 
speeches  of  men,  but  for  the  fact  that  the  learned  counsel  has  been 
more  careful  in  his  extraordinary  argument  to  denounce  the  Presi- 
dent as  a  usurper  than  to  show  how  the  court  could  possibly  decide 
that  it  has  no  judicial  existence,  and  yet  that  it  has  judicial  existence. 

A  representative  of  the  people  and  of  the  rights  of  the  people  be- 
fore this  court,  by  the  appointment  of  the  President,  and  which  ap- 
pointment was  neither  sought  by  me  nor  desired,  I  cannot  allow  all 
that  has  here  been  said  by  way  of  denunciation  of  the  murdered  Presi- 
dent and  his  successor  to  pass  unnoticed.  This  has  been  made  the  occa- 
sion by  the  learned  counsel,  Mr.  Johnson,  to  volunteer,  not  to  defend  the 
accused,  Mary  E.  Surratt,  not  to  make  ajudicial  argument  in  her  behalf, 
but  to  make  a  political  harangue,  a  partisan  speech  against  his  gov- 
ernment and  country,  and  thereby  swell  the  cry  of  the  armed  legions 
of  sedition  and  rebellion  that  but  yesterday  shook  the  heavens  with 
their  infernal  enginery  of  treason  and  filled  the  habitations  of  the  people 
with  death.  As  the  law  forbids  a  senator  of  the  United  States  to  re- 
ceive compensation,  or  fee,  for  defending,  in  cases  before  civil  or  mili- 
tary commissions,  the  gentleman  volunteers  to  make  a  speech  before 
this  court,  in  which  he  denounces  the  action  of  the  Executive  Depart- 
ment in  proclaiming  and  executing  martial  law  against  rebels  in  arms, 
their  aiders  and  abettors,  as  a  usurpation  and  a  tyranny.  I  deem  it 
my  duty  to  reply  to  this  denunciation,  not  for  the  purpose  of  present- 
ing thereby  any  question  for  the  decision  of  this  court,  for  I  have 
shown  that  the  argument  of  the  gentleman  presents  no  question  for 
its  decision  as  a  court,  but  to  repel,  as  far  as  I  may  be  able,  the  un- 
just aspersion  attempted  to  be  cast  upon  the  memory  of  our  dead 
President,  and  upon  the  official  conduct  of  his  successor. 

I  propose  now  to  answer  fully  all  that  the  gentleman  (Mr.  Johnson) 
has  said  of  the  want  of  jurisdiction  in  this  court,  and  of  the  alleged 
usurpation  and  tyranny  of  the  Executive,  that  the  enlightened  public 


13 

opinion  to  which  he  appeals  may  decide  whether  all  this  denunciation 
is  just — whether  indeed  conspiring  against  the  whole  people,  and 
confederation  and  agreement  in  aid  of  insurrection  to  murder  all  the 
executive  officers  of  the  government,  cannot  be  checked  or  arrested 
by  the  Executive  power.  Let  the  people  decide  this  question  ;  and 
in  doing  so,  let  them  pass  upon  tho  action  of  the  senator  as  well  as 
upon  the  action  of  those  whom  he  so  arrogantly  arraigns.  His  plea 
in  behalf  of  an  expiring  and  shattered  rebellion  is  a  fit.  subject  for 
public  consideration  and  for  public  condemnation. 

Let  that  people  also  note,  that  while  the  learned  gentleman,  (Mr. 
Johnson,)  as  a  volunteer,  without  pay,  thus  condemns  as  a  usurpa- 
tion the  means  employed  so  effectually  to  suppress  this  gigantic  insur- 
rection, the  New  York  News,  whose  proprietor,  Benjamin  Wood,  is 
shown  by  the  testimony  upon  your  record  to  tiave  received  from  the 
agents  of  the  rebellion  twenty -five  thousand  dollars,  rushes  into  the 
lists  to  champion  the  cause  of  the  rebellion,  its  aiders  and  abettors, 
by  following  to  the  letter  his  colleague,  (Mr.  Johnson, )  and  with  greater 
plainness  of  speech,  and  a  fervor  intensified,  doubtless,  by  the  twenty- 
five  thousand  dollars  received,  and  the  hope  of  more,  denounces  the 
court  as  a  usurpation  and*  threatens  the  members  with  the  conse- 
quences 1 

The  argument  of  the  gentleman  to  which  the  court  has  listened  so 
patiently  and  so  long  is  but  an  attempt  to  show  that  it  is  unconsti- 
tutional for  the  government  of  the  United  States  to  arrest  upon  mil- 
itary order  and  try  before  military  tribunals  and  punish  upon  convic- 
tion, in  accordance  with  the  laws  of  war  and  the  usages  of  nations,  all 
criminal  offenders  acting  in  aid  of  the  existing  rebellion.  It  does 
seem  to  me  that  the  speech  in  its  tone  and  temper  is  the  same  as  that 
which  the  country  has  heard  for  the  last  four  years  uttered  by  the 
armed  rebels  themselves  angl  by  their  apologists,  averring  that  it  was 
unconstitutional  for  the  government  of  the  United  States  to  defend  by 
arms  its  own  rightful  authority  and  the  supremacy  of  its  laws. 

It  is  as  clearly  the  right  of  tho  republic  to  live  and  to  defend  its  life 
until  it  forfeits  that  right  by  crime,  as  it  is  the  right  of  the  individual 
to  live  so  long  as  God  gives  him  life,  unless  he  forfeits  that  right  by 
crime.  I  make  no  argument  to  support  this  proposition.  Who  is 
there  here  or  elsewhere  to  east  the  reproach  upon  my  country  that 
for  her  crimes  she  must  die  ?  Youngest  born  of  the  nations  !  is  she 
not  immortal  by  all  the  dread  memories  of  the  past — by  that  sublime 
and  voluntary  sacrifice  of  the  present,  in  which  the  bravest  and  no- 
blest of  her  sons  have  laid  down  their  lives  that  she  might  live,  giving 


14 

their  serene  brows  to  the  dust  of  the  grave,  and  lifting  their  hands 
for  the  last  time  amidst  the  consuming  fires  of  battle  !  I  assume,  for 
the  purposes  of  this  argument,  that  self-defence  is  as  clearly  the  right 
of  nations  as  it  is  the  acknowledged  right  x>f  men,  and  that  the  Amer- 
ican people  may  do  in  the  defence  and  maintenance  of  their  own 
rightful  authority  against  organized  armed  rebels,  their  aiders  and 
abettors,  whatever  free  and  independent  nations  anywhere  upon  this 
globe,  in  time  of  war,  may  of  right  do. 

All  this  is  substantially  denied  by  the  gentleman  in  the  remarkable 
argument  which  he  has  here  made.  There  is  nothing  further  from 
my  purpose  than  to  do  injustice  to  the  learned  gentleman  or  to  his 
elaborate  and  ingenious  argument.  To  justify  what  I  have  already 
said,  I  may  be  permitted  here  to  remind  the  court  that  nothing  is 
said  by  the  counsel  touching  the  conduct  of  the  accused,  Mary  E. 
Surratt,  as  shown  by  the  testimony  ;  that  he  makes  confession  at  the 
end  of  his  arraignment  of  the  government  and  country,  that  he  has 
not  made  such  argument,  and  that  he  leaves  it  to  be  made  by  her 
other  counsel.  He  does  take  care,  however,  to  arraign  the  country 
and  the  government  for  conducting  a  trial  with  closed  doors  and 
before  a  secret  tribunal,  and  compares  th*e  proceedings  of  this  court 
to  the  Spanish  Inquisition,  using  the  strongest  words  at  his  command 
to  intensify  the  horror  which  he  supposes  his  announcement  will 
excite  throughout  the  civilized  world. 

Was  this  dealing  fairly  by  this  government?  Was  there  anything 
in  the  conduct  of  the  proceedings  here  that  justified  any  such  remark  ? 
Has  this  been  a  secret  trial  ?  Has  it  not  been  conducted  in  open  day 
in  the  presence  of  the  accused,  and  in  the  presence  of  seven  gentle- 
men learned  in  the  law,  who  appeared  from  day  to  day  as  their 
counsel?  Were  they  not  informed  of  the  accusation  against  them? 
Were  they  deprived  of  the  right  of  challenge?  Was  it  not  secured 
to  them  by  law,  and  were  they  not  asked  to  exercise  it?  Has  any 
part  of  the  evidence  been  suppressed?  Have  not  all  the  proceed- 
ings been  published  to  the  world  ?  What,  then,  was  done,  or  intended 
to  be  done,  by  the  government,  which  justifies  this  clamor  about  a 
Spanish  Inquisition  ? 

That  a  people  assailed  by  organized  treason  over  an  extent  of  ter- 
ritory half  as  large  as  the  continent  of  Europe,  and  assailed  in  their 
very  capital  by  secret  assassins  banded  together  arid  hired  to  do  the 
work  of  murder  by  the  instigation  of  these  conspirators,  may  not 
be  permitted  to  make  inquiry,  even  with  closed  doors,  touching  the 
nature  and  extent  of  the  organization,  ought  not  to  be  asserted  by 


15 

any  gentleman  who  makes  the  least  pretensions  to  any  knowledge  of 
the  law,  either  common,  civil,  or  military.  Who  does  not  know  that 
at  the  common  law  all  inquisition  touching  crimes  and  misdemean- 
ors, preparatory  to  indictment  by  the  grand  inquest  of  the  state, 
is  made  with  closed  doors?  So2.  C-f  £  C-y 

,  In  this  trial  no  parties  accused,  nor  their  counsel,  nor  the  reporters/ 
of4  this  court,. were  at  any  time  excluded  from  its  deliberations  when 
any  testimony  was  being  taken  ;  nor  has  there  been  any  testimony 
taken  in  the  case  with  closed  doors,  save  that  of  a  few  witnesses,  who 
testiBed,  not  in  regard  to  the  accused  or  either  of  them,  but  in  re- 
spect to  the  traitors  and  conspirators  not  on  trial,  who  were  alleged 
to  have  incited  this  crime.  [Who  is  there  to  say  that  the  American 
people,  in  time  of  armed  rebellion  and  civil  war,  have  not  the  right 
to  make  such  an  examination  as  secretly  as  they  may  deem  neces- 
sary, either  in  a  military  or  civil  court  ? 

I  have  said  this,  not  by  way  of  apology  for  anything  the  govern- 
ment has  done  or  attempted  to  do  in  the  progress  of  this  trial,  but  to 
expose  the  animus  of  the  argument,  and  to  repel  the  Accusation  against 
my  country  sent  out  to  the  world  by  the  counsel.  From  anything 
that  he  has  said,  I  have  yet  to  learn  that  the  American  people  have 
not  the  right  to  make  their  inquiries  secretly,  touching  a  general  con- 
spiracy in  aid  of  an  existing  rebellion,  which  involves  their  nationality 
and  the  peace  and  security  of  all. 

The  gentleman  then  enters  into  a  learned  argument  for  the.  purpose 
of  showing  that,  by  the  Constitution,  the  people  of  tho  United  States 
cannot,  in  war  or  in  peace,  subject  any  person  to  trial  before  a  mili- 
tary tribunal,  whatever  may  be  his  crime  or  offence,  unless  such  per- 
son be  in  the  military  or  naval  service  of  the  United  States.  The 
conduct  of  this  argument  is  as  remarkable  as  its  assaults  upon  the 
government  are  unwarranted,  and  its  insinuations  about  the  revival 
of  the  Inquisition  and  secret  trials  are  inexcusable.  The  court  will 
notice  that  the  argument,  from  the  beginning  almost  to  its  conclusion, 
insists  that  no  person  is  liable  to  be  tried  by  military  or  martial  law 
before  a  military  tribunal,  save  those  in  the  land  and  naval  service  of 
the  United  States.  I  repeat,  the  conduct  of  this  argument  of  the 
gentleman  is  remarkable.  As  an  instance,  I  ask  the  attention,  not 
only  of  this  court,  but  of  that  public  whom  he  has  ventured  to  address 
in  this  tone  and  temper,  to  the  authority  of  the  distinguished  Chancellor 
Kent,  whose  great  name  the  counsel  has  endeavored  to  press  into  his 
service  in  support  of  his  general  proposition,  that  no  person  save 
those  in  the  military  or  naval  service  of  the  United  States  is  liable  to 


16 

be  tried  for  any  crime  whatever,  either  in  peace  or  in  war,  before  a 

military  tribunal. 

The  language  of  the  gentleman,  after  citing  the  provision  of  the  Con- 
stitution, ' '  that  no  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise  infamous  crime  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in   tha 
militia,  when  in  actual  service  in  time  of  war  or  public  danger,"  is, 
"that  this  exception  is  designed  to  leave  in  force,  not  to  enlarge,  the 
power  vested  in  Congress  by  the  original  Constitution  to  make  rules 
for  the  government  and  regulation  of  the  land  and  naval  forces;  that 
the  land  or  naval  forces  are  the  terms  used  in  both,  have  the   same 
meaning,  and  until  lately  have  been  supposed  by  every  commentator 
and  judge  to  exclude  from  military  jurisdiction  offences  committed  by 
citizens  not  belonging  to  such  forces."     The  learned  gentleman  then 
adds:  "Kent,  in  a  note  to  his  1st   Commentaries,  341 ,  states ,  and 
with  accuracy,  that  'military  and  naval  crimes  and  offences,  com- 
mitted while  the  party  is  attached  to  and  under  the  immediate   au- 
thority of  the  army  and  navy  of  the  United  States  and  in  actual 
service,  are  not  cognizable  under  the  common-law  jurisdiction  of  the 
courts  of  the  United  States.' '      I  ask  this  court  to  bear  in  mind  that 
this  is  the  only  passage  which  he  quotes  from  this  note  of  Kent  in 
his  argument,  and  that  no  man  possessed  of  common  sense,  however 
destitute  he  may  be  of  the  exact  and  varied  learning  in  the  law  to 
which  the  gentleman  may  rightfully  lay  claim,  can  for  a  moment  en- 
tertain the  opinion  that  the  distinguished  chancellor  of  New  York,  in 
the  passage  just  cited,  intimates  any  such  thing  as  the  counsel  asserts, 
that  the  Constitution  excludes  from  military  jurisdiction  offences  com- 
mitted by  citizens  not  belonging  to  the  land  or  naval  forces. 

Who  can  fail  to  see  that  Chancellor  Kent,  by  the  passage  cited, 
only  decides  that  military  and  naval  crimes  and  offences  committed 
by  a  party  attached  to  and  under  the  immediate  authority  of  the 
army  and  navy  of  the  United  States,  and  in  actual  service,  are  not 
cognizable  under  the  common-law  jurisdiction  of  the  courts  of  the 
United  States  ?  He  only  says  they  are  not  cognizable  under  its  <jom- 
mon-law  jurisdiction;  but  by  that  he  does  not  say  or  intimate,  what 
is  attempted  to  be  said  by  the  counsel  for  him,  that  ' '  all  crimes 
committed  by  citizens  are  by  the  Constitution  excluded  from  military 
jurisdiction,"  and  that  the  perpetrators  of  them  can  under  no  circum- 
stances be  tried  before  military  tribunals.  Yet  the  counsel  ventures 
to  proceed,  standing  upon  this  passage  quoted  from  Kent,  to  say  that, 


"according  to  this  great  authority,  every  other  class  of  persons  and 
every  other  species  of  offences  are  within  the  jurisdiction  of  the  civil 
courts,  and  entitled  to  the  protection  of  the  proceeding  by  present- 
ment or  indictment  and  the  public  trial  in  such  a  court." 

Whatever  that  great  authority  may  have  said  elsewhere,  it  is  very 
doubtful  whether  any  candid  man  in  America  will  be  able  to  come 
to  the  very  learned  and  astute  conclusion  that  Chancellor  Kent,  has 
so  stated  in  the  note  or  any  part  of  the  note  which  the  gentleman, 
has  just  cited.  If  he  has  said  it  elsewhere,  it  is  for  the  gentleman, 
if  he  relies  upon  Kent  for  authority,  to  produce,  the  passage.  But 
was  it  fair  treatment  of  this  "  great  authority" — was  it  not  taking 
an  unwarrantable  privilege  with  the  distinguished  chancellor  and  his 
great  work,  the  enduring  monument  of  his  learning  and  genius,  to  so 
mutilate  the  note  referred  to,  as  might  leave  the  gentleman  at  liberty 
to  make  his  deductions  and  assertions  under  cover  of  the  great  name 
of  the  New  York  chancellor,  to  suit  the  emergency  of  his  case,  by 
omitting  the  following  passage,  which  occurs  in  the  same  note,  and 
absolutely  excludes  the  conclusion  so  defiantly  put  forth  by  the  counsel 
to  support  his  argument  ?  In  that  note  Chancellor  Kent  says  : 

"Military  law  is  a  system  of  regulations  for  the  government  of  the 
armies  in  the  service  of  the  United  States,  authorized  by  the  act  of 
Congress  of  April  10,  1806,  known  as  the  Articles  of  War,  and  naval 
law  is  a  similar  system  for  the  government  of  the  navy,  under  the 
act  of  Congress  of  April  23,  1800.  But  martial  law  is  quite  a  distinct 
thing,  and  is  founded  upon  paramount  necessity,  .and  proclaimed  by 
a  military  chief." 

However  unsuccessful,  after  this  exposure,  the  gentleman  appears 
in  maintaining  his  monstrous  proposition,  that  the  American  people 
are  by  their  own  Constitution  forbidden  to  try  the  aiders  and  abettors 
of  armed  traitors  and  rebellion  before  military  tribunals,  and  subject 
them,  according  to  the  laws  of  war  and  the  usages  of  nations,  to  just 
punishment,  for  their  great  crimes,  it  has  been  made  clear  from  what 
I  have  already  stated  that  he  has  been  eminently  successful  in  muti- 
lating this  beautiful  production  of  that  great  mind;  which  act  of  mu- 
tilation every  one  knows  is  violative  alike  of  the  laws  of  peace  and 
war.  Even  in  war  the  divine  creations  of  art  and  the  immortal  pro- 
ductions of  genius  and  learning  are  spared. 

In  the  same  spirit,  and  it  s.eems  to  me  with  the  same  unfairness  as 
that  just  noted,  the  learned  gentleman  has  very  adroitly  pressed  into 
his  service,  by  an  extract  from  the  autobiography  of  the  war-worn 
2B  . 


veteran  and  hero,  General  Scott,  the  names  of  the  late  Secretary  of 
War,  Mr.  Marcy,  and  the  learned  ex-Attorney  General,  Mr.  Gushing. 
This  adroit  performance  is  achieved  in  tins  way:  after  stating  the 
fact  that  General  Scott  in  Mexico  proclaimed  martial  law  for  the 
trial  and  punishment  by  military  tribunals  of  persons  guilty  of 
"assassination,  murder,  and  poisoning,"  the  gentleman  proceeds  to 
quote  from  the  Autobiography,  "that  this  order,  when  handed  to  the 
then  Secretary  of  War  (Mr.  Marcy)  for  his  approval,  '  a  startle  at  the 
title  (martial  law  order)  was  the  only  comment  he  then  or  ever  made 
on  the  subject,'  and  that  it  was  'soon  silently  returned  as  too  explo- 
sive for  safe  handling.'  'A  little  later  (he  adds)  the  Attorney  Gen- 
eral (Mr.  Gushing)  called  and  asked  for  a  copy,  and  the  law  officer  of 
the  government,  whose  business  it  is  to  speak  on  all  such  matters, 
was  stricken  with  legal  dumbness."  Thereupon  the  learned  gentle- 
man proceeds  to  say:  "How\much  more  startled  and  more  paralyzed 
would  these  great  men  have  been  had  they  been  consulted  on  such  a 
commission  as  this!  A  commission,  not  to  sit  in  another  country,  and 
to  try  offences  not  provided  for  in  any  law  of  the  United  States,  civil 
or  military,  then  in  force,  but  in  their  own  country,  and  in  a  part 
of  it  where  there  are  laws  providing  for*  their  trial  and  punishment, 
and  civil  courts  clothed  with  ample  powers  for  both,  and  in  the  daily 
and  undisturbed  exercise  of  their  jurisdiction." 

I  think  I  may  safely  say,  without  stopping  to  make  any  special  ref- 
erences, that  the  official  career  of  the  late  Secretary  of  War  (Mr. 
Murcy)  gave  no  indication  that  he  ever  doubted  or  denied  the  con- 
stitutional power  of  the  American  people,  acting  through  their  duly 
constituted  agents,  to  do  any  act  justified  by  the  laws  of  war,  for  the 
suppression  of  a  rebellion  or  to  repel  invasion.  Certainly  there  is 
nothing  in  this  extract  from  the  Autobiography  which  justifies  any 
such  conclusion.  He  was  startled,  we  are  told.  It  may  have  been 
as  much  the  admiration  he  had  for  the  boldness  and  wisdom  of  the 
conqueror  of  Mexico  as  any  abhorrence  he  had  for  the  trial  and  pun- 
ishment of  "assassins,  poisoners,  and  murderers,"  according  to  the 
laws  and  usages  of  war. 

But  the  official  utterances  of  the  ex- Attorney  General,  Gushing, 
with  which  the  gentleman  doubtless  was  familiar  when  he  prepared 
this  argument,  by  no  means  justify  the  attempt  here  made  to  quote 
him  as  authority  against  the  proclamation  and  enforcement  of  mar- 
tial law  in  time  of  rebellion  and  civil  war.  That  distinguished  man, 
not  second  in  legal  attainments  to  any  who  have  held  that  position, 
has  left  an  official  opinion  of  record  touching  this  subject.  Referring 


19 

to  what  is  said  by  Sir  Mathew  Hale,  in  his  History  of  the  Common 
Law,  concerning  martial  law,  wherein  he  limits  it,  as  the  gentleman 
has  seemed  by  the  whole  drift  of  his  argument  desirous  of  doing,  and 
says  that  it  is  "not  in  truth  and  in  reality  law,  but  something  in- 
dulged rather  than  allowed  as  a  law — the  necessity  of  government, 
order,  and  discipline  in  an  army,"  Mr.  Gushing  makes  this  just  criti- 
cism :  "This  proposition  is  a  mere  composite  blunder,  a  total  mis- 
apprehension of  the  matter.  It  confounds  martial  law  and  laiv  mili* 
tary:  it  ascribes  to  the  former  the  uses  of  the  latter  ;  it  erroneously 
assumes  that  the  government  of  a  body  of  troops  is  a  necessity  more 
than  of  a  body  of  civilians  or  citizens.  Jt  confounds  and  confuses  all 
the  relations  of  the  subject,  and  is  an  apt  illustration  of  the  incom- 
pleteness of  the  notions  of  the  common-law  jurists  of  England  in  re- 
gard to  matters  not  comprehended  in  that  limited  branch  of  legal 
science.  *  *  *,  Military  law,  it  is  now  perfectly  understood  in 
England,  is  a  branch  of  the  law  of  the  land,  applicable  only  to  certain 
acts  of  a  particular  class  of  persons  and  administered  by  special 
tribunals;  but  neither  in  that  nor  in  any  other  respect  essentially 
differing  as  to  foundation  in  constitutional  reason  from  admiralty, 
ecclesiastical,  or  indeed  chancery  and  common  law.  * 

It  is  the  system  of  rules  for  the  government  of  the  army  and  navy 
established  by  successive  acts  of  Parliament.  *  *  * 

Martial  law,  as  exercised  in  any  country  by  the  commander  of  a 
foreign  army,  is  an  element  of  the  jus  belli, 

"  It  is  incidental  to  the  state  of  solemn  war,  and  appertains  to  the 
law  of  nations.  *  Thus,  while  the  armies  of  the  United 

States  occupied  different  provinces  of  the  Mexican  republic,  the 
respective  commanders  were  not  limited  in  authority  by  any  local 
law.  They  allowed,  or  rather  required,  the  magistrates  of  the  coun- 
try, municipal  or  judicial,  to  continue  to  administer  the  laws  of  the 
country  among  their  countrymen  ;  but  in  subjection,  always,  to  the 
military  power,  which  acted  summarily  and  according  to  discretion, 
when  the  belligerent  interests  of  the  conqueror  required  it,  and 
which  exercised  jurisdiction,  either  summarily  or  by  means  of  mili- 
tary commissions  for  the  protection  or  the  punishment  of  citizens  of 
the  United  States  in  Mexico." — Opinions  of  Attorneys  General,  vol. 
viii,  3G6-369. 

Mr.  Gushing  says,  "That,  it  would  seem,  was  one  of  the  forms  of 
martial  law ;"  but  he  adds,  that  such  an  example  of  martial  law  ad- 
ministered by  a  foreign  army  in  the  enemy's  country  "does  not  en- 


20 

lighten  us  in  regard  to  the  question  of  martial  law  in  one's  own  coun- 
try, and  as  administered  by  its  military  commanders.  That  is  a  case 
which  the  law  of  nations  does  not  reach.  Its  regulation  is  of  the  do- 
mestic resort  of  the  organic  laws  of  the  country  itself,  and  regarding 
which,  as  it  happens,  there  is  no  definite  or  explicit  legislation  in  the 
United  States,  as  there  is  none  in  England. 

"Accordingly,  in  England,  as  we  have  seen,  Earl  Grey  assumes  that 
when  martial  law  exists  it  has  no  legal  origin,  but  is  a  mere  fact  of 
necessity,  to  be  legalized  afterwards  by  a  bill  of  indemnity,  if  there, 
be -occasion.  I  am  not  prepared  to  say  that,  under  existing  laws, 
such  may  not  also  be  the  case  in  the  United  States." — Ibid.,  370. 

After  such  a  statement,  wherein  ex-Attorney  General  Gushing  very 
clearly  recognizes  the  right  of  this  government,  as  also  of  England, 
to  employ  martial  law  as  a  means  of  defence  in  a  time  of  war,  whether 
domestic  or  foreign,  he  will  be  as  much  surprised  when  he  reads  the 
argument  of  the  learned  gentleman,  wherein  he  is  described  as  being 
struck  with  legal  dumbness  at  the  mere  mention  of  proclaiming  martial 
law,  and  its  enforcement  by  the  commander  of  our  army  in  Mexico, 
as  the  late  Secretary  of  War  was  startled  with  even  the  mention  of 
its  title. 

Even  some  of  the  reasons  given,  and  certainly  the  power  exercised 
by  the  veteran  hero  himself,  would  seem  to  be  in  direct  conflict  with 
the  propositions  of  the  learned  gentleman. 

The  Lieutenant  General  says,  he  "  excludes  from  his  order  cases 
already  cognizable  by  court-martial,  and  limits  it  to  cases  not  pro- 
Tided  for  in  the  act  of  Congress  establishing  rules  and  articles  for  the 
government  of  the  armies  of  the  United  States."  Has  not  the  gen- 
tleman who  attempts  to  press  General  Scott  into  his  service  argued 
and  insisted  upon  it,  that  the  commander  of  the  army  cannot  subject 
the  soldiers  under  his  command  to  any  control  or  punishment  what- 
ever, save  that  which  is  provided  for  in  the  articles  ? 

It  will  not  do,  in  order  to  sustain  the  gentleman's  hypothesis,  to  say 
that  these  provisions  of  the  Constitution,  by  which  he  attempts  to 
fetter  the  power  of  the  people  to  punish  such  offences  in-  time  of  war 
within  the  territory  of  the  United  States,  may  be  disregarded  by  an 
officer  of  the  United  States  in  command  of  its  armies,  in  the  trial  and 
punishment  of  its  soldiers  in  a  foreign  war.  The  law  of  the  United 
States  for  the  government  of  its  own  armies  follows  the  flag  upon 
every  sea  and  in  every  land. 

The  truth  is,  that  the  right  of  the  people  to  proclaim  and  execute 
martial  law  is  a  necessary  incident  of  war,  and  this  was  the  right 


21 

exercised,  and  rightfully  exercised,  by  Lieutenant  General  Scott  in 
Mexico.  It  was  what  Earl  Grey  has  justly  said  was  a  "fact  of  ne- 
cessity," and  I  may  add,  an  act  as  clearly  authorized  as  was  the  act 
of  fighting  the  enemy  when  they  appeared  before  him. 

In  making  this  exception,  the  Lieutenant  General  followed  the  rule 
recognized  by  the  American  authorities  on  military  law,  in  which 
it  is  declared  that  "many  crimes  committed  even  by  military  officers, 
enlisted  men,  or  camp  retainers,  cannot  be  tried  under  the  rules  and 
articles  of  war.  Military  commissions  must  be  resorted  to  for  such 
cases,  and  these  commissions  should  be  prdered'by  the  same  authority, 
be  constituted  in  a  similar  manner,  and  their  proceedings  be  con- 
ducted according  to  the  same  general  rules  as  general  courts-mar- 
tial."— Benet,  15. 

There  remain  for  me  to  notice,  at  present,  two  other  points 
in  this  extraordinary  speech:  first,  that  martial  law  does  not  warrant 
a  military  commission  for  the  trial  of  military  offences — that  is, offences 
committed  in  time  of  war  in  the  interests  of  the  public  enemy,  and 
by  concert  and  agreement  with  the  enemy;  and  second,  that  martial 
law  does  not  prevail  in  the  United  States,  and  has  never  been  declared 
by  any  competent  authority. 

It  is  not  necessary,  as  the  gentleman  himself  has  declined  to  argue 
the  first  point, — whether  martial  law  authorizes  the  organization  of 
military  commissions  by  order  of  the  Commander-in- Chief  to  try  such 
offences,  that  I  should  say  more  than  that  the  authority  just  cited  by 
me  shows  that  such  commissions  are  authorized  under  martial  law, 
and  are  created  by  the  commander  for  the  trial  of  -all  such  offences, 
when  their  punishment  by  court-martial  is  not  provided  for  by  the 
express  statute  law  of  the  country. 

The  second  point, — that  martial  law  has  not  been  declared  by  any 
competent  authority,  is  an  arraignment  of  the  late  murdered  Pres- 
ident of  the  United  States  for  his  proclamation  of  September  24, 
1862,  declaring  martiailaw  throughout  the  United  States;  and  of  which, 
in  Lawrence's  edition  of  Wheaton  on  International  Law,  p.  522,  it  is 
said,  "  Whatever  may  be  the  inference  to  be  deduced  either  from 
constitutional  or  international  law,  or  from  the  usages  of  European 
governments,  as  to  the  legitimate  depository  of  the  power  of  suspend- 
ing the  writ  of  habeas  corpus,  the  virtual  abrogation  of  the  judiciary 
in  cases  affecting  individual  liberty,  and  the  establishment  as  matter 
of  fact  in  the  United  States,  by  the  Executive  alone,  of  martial  law, 
not  merely  in  the  insurrectionary  districts,  or  in  cases  of  military 
occupancy,  but  throughout  the  entire  Union,  and  not  temporarily, 


22 

but  as  an  institution  as  permanent  as  the  insurrection  on  which  it 
professes  to  be  based,  and  capable  on  the  same  principle  of  being 
revived  in  all  cases  of  foreign  as  well  as  civil  war,  are  placed  beyond 
question  by  the  President's  proclamation  of  September  24,  1862. " 
That  proclamation  is  as  follows  : 

"BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA 

"A    PROCLAMATION. 

"  Whereas  it  has  become  necessary  to  call  into  service  not  only  volunteers, 
but  also  portions  of  the  militia  of  the  States,  by  a  draft,  in  order  to  suppress 
the  insurrection  existing  in  the  United  States,  and  disloyal  persons  are  not  ade- 
quately restrained  by  the  ordinary  processes  of  law  from  hindering  this  measure, 
and  from  giving  aid  and  comfort  in  various  ways  to  the  insurrection :  Now, 
therefore,  be  it  ordered,  that  during  the  existing  insurrection,  and  as  a  necessary 
means  for  suppressing  the  same,  all  rebels  and  insurgents,  their  aiders  and  abet- 
tors, within  the  United  States,  and  all  persons  discouraging  volunteer  enlist- 
ments, resistipg  militia  drafts,  or  guilty  of  any  disloyal  practice,  affording  aid 
and  comfort  to  rebels,  against  the  authority  of  the  United  States,  shall  be 
subject  to  martial  law,  and  liable  to  trial  and  punishment  by  courts-martial  or 
military  commission. 

"  Second.  That  the  writ  of  habeas  corpus  is  suspended  in  respect  to  all  per- 
sons arrested,  or  who  are  now,  or  hereafter  during  the  rebellion  shall  be,  impris- 
oned in  any  -fort,  camp,  arsenal,  military  prison,  or  other  place  of  confine- 
ment, by  any  military  authority,  or  by  the  sentence  of  any  court  martial  or 
military  commission. 

"  In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused  the  seal  of 
the  United  States  to  be  affixed. 

"  Done  at  the  city  of  Washington,  this  24th  day  of  September,  A.  D.  1862, 
and  of  the  independence  of  the  United  States  the  eighty-seventh. 

"ABRAHAM  LINCOLN. 
"  By  the  President : 

"  WILLIAM  H.  SEWARD, 

"  Secretary  of  State," 

This  proclamation  is  duly  certified  from  the  War  Department  to  be 

in  full  force  and  not  revoked,  and  is  evidence  of  record  in  this  case; 

and  but  a  few  days  since  a  proclamation  of  the  President,  of  which 

this  court  will  take  notice,  declares  that  the  same  remains  in  full  force. 

has  been  said  by  another  of  the  counsel  for  the  accused  (Mr. 

Stone)  in  his  argument,  that,  admitting  its  validity,  the  proclamation 

to  have  effect  with  the  insurrection,  and  is  terminated  by  it. 

true   the  proclamation  of  martial  law  only  continues  during 

the  insurrection;  but  inasmuch  as  the  question  of  the  existence  of 


23 

4 

an  insurrection  is  a  political  question,  the  decision  of  which  belongs 
exclusively  to  the  political  department  of  the  government,  that  de- 
partment alone  can  declare  its  existence,  and  that  department  alone 
can  declare  its  termination,  and  by  the  action  of  the  political  depart- 
ment of  the  government  every  judicial  tribunal  in  the  land  is  con- 
cluded and  bound.'  That  question  has  been  settled  for  fifty  years 
in  this  country  by  the  Supreme  Court  of  the  United  States  :  First, 
in  the  case  of  Brown  vs.  The  United  States  (8  Cranch;)  also  in  the  prize 
cases  (2  Black,  641.)  Nothing  more,  therefore,  need  be  said  upon 
this  question  of  an  existing  insurrection  than  this:  The  political  de- 
partment of  the  government  has  heretofore  proclaimed  an  insurrection, 
that  department  has  not  yet  declared  the  insurrection  ended,  and  the 
event  on  the  l4th  of  April,  which  robbed  the  people  of  their  chosen 
Executive,  and  clothed  this  land  in  mourning,  bore  sad  but  over- 
whelming witness  to  the  fact  that  the  rebellion  is  not  ended.  The 
fact  of  the  insurrection  is  not  an  open  question  to  be  tried  or  settled 
by  parol,  either  in  a  military  tribunal  or  in  a  civil  court. 

The  declaration  of  the  learned  gentleman  who  opened  the  defence, 
(Mr.  Johnson,)  that  martial  law  has  never  been  declared  by  any  com- 
petent authority,  as  I  have  already  said,  arraigns  Mr.  Lincoln  for  a 
usurpation  of  power.  Does  the  gentleman  mean  to  say  that,  until 
Congress  authorizes  it,  the  President  cannot  proclaim  and  enforce 
martial  law  in  the  suppression  of  armed  and  organized  rebellion  ?  Or 
does  he  only  affirm  that  this  act  of  the  late  President  is  a  usurpation? 

The  proclamation  of  martial  law  in  1862  a  usurpation  !  though 
it  armed  the  people  in  that  dark  hour  of  trial  with  the  means  of  de- 
fence against  traitorous  and  secret  enemies  in  every  State  and  dis> 
trict  of  the  country;  though  by  its  use  some  of  the  guilty  were  brought 
to  swift  and  just  judgment,  and  others  deterred  from  crime  or  driven 
to  flight;  though  by  this  means  the  innocent  and  defenceless  were 
protected;  though  by  this  means  the  city  of  the  gentleman's  residence 
was  saved  from  the  violence  and  pillage  of  the  mob  and  the  torch  of 
the  incendiary.  But,  says,  the  gentleman,  it  was  a  usurpation,  for- 
bidden by  the  laws  of  the  land  ! 

The  same  was  said  of  the  proclamations  of  blockade  issued  April 
19  and  27,  1861,  which  declared  a  blockade  of  the  ports  of  the  insur- 
gent States,  and  that  all  vessels  violating  the  same  were  subjects  of 
capture,  and,  together  with  the  cargo,  to  be  condemned  as  prize.  In- 
asmuch as  Congress  had  not  then  recognized  the  fact  of  civil  war, 
these  proclamations  were  denounced  as  void.  The  Supreme  Court 
decided  otherwise,  and  affirmed  the  power  of  the  Executive  thus  to 


24 

subject  property  on  tbe  seas  to  seizure  and  condemnation.     I  read 

from  that  decision  : 

"The  Constitution  confers  upon  the  President  the  whole  executive 
power;  he  is  bound  to  take  care  that  the  laws  be  faithfully  executed; 
he  is  Commander-in-chief  of  the  army  and  navy  of  the  United  States 
and  of  the  militia  of  the  several  States  when  called  into  the  actual 
service  of  the  United  States.  *  *  Whether  the  President,  m  ful- 
filling his  duties  as -commander-m-chief  in  suppressing  an  insurrec- 
tion, has  met  with  such  armed  hostile  resistance,  and  a  civil  war  of 
such  alarming  proportions  as  will  compel  him  to  accord  to  them  the 
character  of  belligerents,  is  a  question  to  be  decided  by  him,  and  this 
court  must  be  governed  by  the  decisions  and  acts  of  the  political 
department  of  the  government  to  which  this  power  was  intrusted. 
He  must  determine  what  degree  of  force  the  crisis  demands. 

"The  proclamation  of  blockade  is  itself  official  and  conclusive  evi- 
dence to  the  court  that  a  state  of  war  existed  which  demanded  and 
authorized  a  recourse  to  such  a  measure  under  the  circumstances  pe- 
culiar to  the  case."  (2  Black,  670.) 

It  has  been  solemnly  ruled  by  the  same  tribunal,  in  an  earlier  case, 
"  that  the  power  is  confided  to  the  Executive  of  the  Union  to  deter- 
mine when  it  is  necessary  to  call  out  the  militia  of  the  States  to  repel 
invasion,"  as  follows  :   "That  he  is  necessarily  constituted  the  judge 
of  the  existence  of  the  exigency  in  the  first  instance,  and  is  bound  to 
act  according    to  his  belief  of  the  facts.     If  he  does  so  act,    and 
decides  to  call  forth  the  militia,  his   orders  for  this  purpose  are  in 
strict  conformity  with  the  provisions  of  the  law  ;  and  it  would  seem 
to  follow  as  a  necessary  consequence,  that  every  act  done  by  a  sub- 
ordinate officer,  in  obedience  to  such  orders,  is  equally  justifiable. 
The  law  contemplates  that,  under  such  circumstances,  orders  shall  be 
given  to  carry  the  power  into  effect ;  and  it  cannot  therefore  be  a 
correct  inference  that  any  other  person  has  a  just  right  to  disobey 
them.     The  law  does  not  provide  for  any  appeal  from  the  judgment 
of  the  President,  or  for  any  right  in  subordinate  officers  to  review  his 
decision,  and  in   effect  defeat  it.     Whenever  a  statute  gives  a  dis- 
cretionary power  to  any  person,  to  be  exercised  by  him  upon  his  own 
opinion  of  certain  facts,  it  is  a  sound  rule  of  construction,  that  the 
statute  constitutes  him  the  sole  and  exclusive  judge  of  the  existence 
of  those  facts."     (12  Wheaton,  31.) 

In  the  light  of  these  decisions,  it  must  be  clear  to  every  mind  that 
the  question  of  the  existence  of  an  insurrection,  and  the  necessity  of 
calling  into  requisition  for  its  suppression  both  the  militia  of  the 


25 

States  and  the  army  and  navy  of  the  United  States,  and  of  proclaim- 
ing martial  law,  which  is  an  essential  condition  of  war,  whether 
foreign  or  domestic,  must  rest  with  the  officer  of  the  government  who 
is  charged  by  the  express  terms  of  the  Constitution  with  the  per- 
formance of  this  great  duty  for  the  common  defence  and  the  execu- 
tion of  the  laws  of  the  Union. 

But  it  ia  further  insisted  by  the  gentleman  in  this  argument,  that 
Congress  has  not  authorized  the  establishment  of  military  commissions, 
which  are  essential  to  the  judicial  administration  of  martial  law  and 
the  punishment  of  crimes  committed  during  the  existence  of  a  civil 
war,  and  especially,  that  such  commissions  are  not  so  authorized  to  try 
persons  other  than  those  in  the  military  or  naval  service  of  the  United 
States,  or  in  the  militia  of  the  several  States,  when  in  the  actual  service 
of  the  United  States.  The  gentleman's  argument  assuredly  destroys 
itself,  for  ho. insists  that  the  Congress,  as  the  legislative  department 
of  the  government,  can  pass  no  law  which,  either  in  peace  or  waiy  can 
constitutionally  subject  any  citizen  not  in  the  land  or  naval  forces-  to 
trial  for  crime  before  a  military  tribunal,  or  otherwise  than  by  a  jury 
in  the  civil  courts. 

Why  does  the  learned  gentleman  now  tell  us  that  Congress  has 
not  authorized  this  to  be  done,  after  declaring  just  as  stoutly  that 
by  the  fifth  and  sixth  amendments  to  the  Constitution  no  such  military 
tribunals  can  be  established  for  the  trial  of  any  person  not  in  the 
military  or  naval  service  of  the  United  States,  or  in  the  militia  when 
in  actual  service,  for  the  commission  of  any  crime  whatever  in  time 
of  war  or  insurrection?     It  ought  to  have  occurred  to  the  gentle- 
man when  commenting  upon  the  exception  in  the  fifth  article  of  the 
Constitution,  that  there  was  a  reason  for  it  very  different  from  that 
which  he  saw  fit  to  assign,  and  that  reason,  manifestly  upon  the  face 
of  the  Constitution  itself,  was,  that  by  the  eighth  section  of  the  first 
article,  it  is  expressly  provided,  that  Congress  shall  have  power  to 
make  rules  for  the  government  of  the  land  and  naval  forces,  and  to 
provide  for  organizing,  arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the  service  of  the 
United  States,  and  that,  inasmuch  as  military  discipline  and  order  are 
as  essential  in  an  army  in  time  of  peace,  as  in  time  of  war,  if  the 
Constitution  would  leave  this  power  to  Congress  in  peace,  it  must 
make  the  exception,  so  that  rules  and  regulations  for  the  government 
of  the  array  and  navy  should  be  operative  in  time  of  peace  as  well  as 
in  time  of  war  ;  because  the   provisions  of  the  Constitution  give  the 
right  of  trial  by  jury  IN  TIME  OF  PEACE,  in  all  criminal  prosecutions 


2G 

by  indictment,  in  terms  embracing  every  human  being  that  may  be 
held  to  answer  for  crime  in  the  United  States  :  and  therefore  if  the 
eighth  section  of  the  first  article  was  to  remain  in  full  force  IN  TIME  OP 
PEACE,  the  exception  must  be  made  ;  and  accordingly,  the  exception 
was  made.  But  by  the  argument  we  have  listened  to,  this  court  is 
told,  and  the. country  is  told,  that  IN  TIME  OP  WAR— a  war  which  in- 
volves in  its  dread  issue  the  lives  and  interests  of  us  all — the  guaran- 
tees of  the  Constitution  are  in  full  force  for  the  "benefit  of  tho^e  who 
conspire  with  the  enemy,  creep  into  your  camps,  murder  in  cold  blood, 
in  the  interests  of  the  invader  or  insurgent,  the  commander-in-chief  of 
your  army,  and  secure  to  him  the  slow  and  weak  provisions  of  the  civi} 
law,  while  the  soldier;  who  may,  when  overcome  by  the  demands  of 
exhausted  nature,  which  cannot  be  resisted,  have  slept  at  his  post,  is 
subject  to  be  tried  upon  the  spot  by  a  military  tribunal  and  shot.  The 
argument  amounts  to  this:  that  as  military  courts  and  military  trials  of 
civilians  in  time  of  war  are  a  usurpation  and  tyranny,  and  as  soldiers 
are  liable  to  such  arrests  and  trial,  Sergeant  Corbett,  who  shot  Booth, 
should  be  tried  and  executed  by  sentence  of  a  military  court ;  while 
Booth's  co-conspirators  and  aiders  should  be  saved  from  any  such  in- 
dignity as  a  military  trial  !  I  confess  that  I  am  too  dull  to  compre- 
hend the  logic,  the  reason,  or  the  sense  of  such  a  conclusion  !  If  there 
is  any  one  entitled  to  this  privilege  of  a  civil  trial,  at  a  remote  period, 
and  by  a  jury  of  the  District,  IN  TIME  OP  CIVIL  WAR,  when  the  foundations 
of  the  republic  are  rocking  beneath  the  earthquake  tread  of  armed 
rebellion,  that  man  is  the  defender  of  the  republic.  It  will  never  do 
to  say,  as  has  been  said  in  this  argument,  that  the  soldier  is  not  lia- 
ble to  be  tried  in  time  of  war  by  a  military  tribunal  for  any  other 
offence  than  those  prescribed  in  the  rules  and  articles  of  war.  To 
my  mind,  nothing  can  be  clearer  than  that  citizen  and  soldier  alike, 
in  time  of  civil  or  foreign  war,  after  a  proclamation  of  martial  law, 
are  triable  by  military  tribunals  for  all  offences  of  which  they  may  be 
guilty,  in  the  interests  of,  or  in  concert  with,  the  enemy.. 

These  provisions,  therefore,  of  yaur  Constitution  for  indictment  and 
trial  by  jury  in  civil  courts  of  all  crimes  are,  as  I  shall  hereafter  show, 
Bilent  and  inoperative  in  time  of  war  when  the  public  safety  requires  it. 

The  argument  to  which  I  have  thus  been  replying,  as  the  court 
will  not  fail  to  perceive,  nor  that  public  to  which  the  argument  is  ad- 
dressed, is  a  1-ibored  attempt  to  establish  the  proposition,  that,  by  the 
Constitution  of  the  United  States,  the  American  people  cannot 7  even 
in  a  civil  war  the  greatest  the  world  has  ever  seen,  employ  martial 
law  and  military  tribunals  as  a  means  of  successfully  asserting  their 


27 

authority,  preserving  their  nationality,  and  securing  protection  to 
the  lives  and  property  of  all,  and  especially  to  the  persons  of  those  to 
whom  they  have  committed,  officially,  the  great  trust  of  maintaining 
the  national  authority.  The  gentleman  says,  with  an  air  of  perfect 
confidence,  that  he  -denies  the  jurisdiction  of  military  tribunals  for 
the  trial  of  civilians  in  time  of  war,  because  neither  the  Constitution 
nor  laws  justify,  but  on  the  contrary  repudiate  them,  and  that  all  the 
experience  of  the  past  is  against  it.  I  might  content  myself  with 
saying  that  the  practice  of  all  nations  is  against  the  gentleman's  con- 
clusion. The  struggle  for  our  national  independence  was  aided  and 
prosecuted  by  military  tribunals  and  martial  law,  as  well  as  by  arms. 
The  contest  for  American  nationality  began  with .  the  establishment, 
very  soon  after  the  firing  of  the  first  gun  at  Lexington  on  the  19th 
day  of  April,  1775,  of  military  tribunals  and  martial  law.  On  the 
30th  of  June,  1775,  the  Continental  Congress  provided  that  "whoso- 
ever, belonging  to  the  continental  army,  shall  be  convicted  of  holding 
correspondence  with,  or  giving  intelligence  to  the  enemy,  either  in- 
directly or  directly,  shall  suffer  such  punishment  as  by  a  cpurt-martial 
shall  be  ordered."  "This  was  found  not  sufficient,  inasmuch  as  it  did 
not  reach  those  civilians  who,  like  certain  civilians  of  our  day,  claim 
the  protection  of  the  civil  law  in  time  of  war  against  military  arrests 
and  military  trials  for  military  crimes.  Therefore,  the  same  Con- 
gress, on  the  7th  of  November,  1775,  amended  this  provision1  by 
striking  out  the  words  "belonging  to  the  continental  army,"  and 
adopting  the  article  as  follows: 

"AH  persons  convicted  of  holding  a  treacherous  correspondence  with,  or  giving 
intelligence  to  the  enemy,  shall  suffer  death  or  such  other  punishment  as  a  gen- 
eral court-martial  shall  think  proper." 

And  on  the  17th  of  June,  1776,  the  Congress  added  an  additional 
rule —  « 

"  That  all  persons,  not  members  of,  nor  owing  allegiance  to,  any  of  the  United 
States  of  America,  who  should  be  found  lurking  as  spies  in  or  about  the  fortifi- 
cations or  encampments  of  the  armies  of  the  United  States,  or  any  of  them,  shall 
suffer  death,  according  to  the  law  and  usage  of  nations,  by  the  sentence  of  a 
court-martial,  or  such  other  punishment  as  a  court-martial  shall  direct." 

Comprehensive  as  was  this  legislation,  embracing  as  it  did 
soldiers,  citizens,  and  aliens,  subjecting  all  alike  to  trial  for  their  mili- 
tary crimes  by  the  military  tribunals  of  justice,  according  to  the  law 
arid  the  usage  of  nations,  it  was  found  to  be  insufficient  to  meet  that 
most  dangerous  of  all  crimes  committed  in  the  interests  of  the  enemy 


by  citizens  in  time  of  war— the  crime  of  conspiring  together  to  assas- 
sinate or  seize  and  carry  away  the  soldiers  and  citizens  who  were 
loyal  to  the  cause  of  the  country.  Therefore,  on  the  27th  of  Febru- 
ary, 1778,  the  Congress  adopted  the  following  resolution  : 

"  Resolved,  That  whatever  inhabitant  of  these  States  shall  kill,  or  seize,  or  take 
any  loyal  citizen  or  citizens  thereof  and  convey  him,  her,  or  them  to  any  place 
•within  the  power  of  the  enemy,  or  shall  ENTER  INTO  ANY  COMBINATION  for  such 
purpose,  or  attempt  to  carry  the  same  into  execution,  or  hath  assisted  or  shall 
assist  therein ;  or  shall,  by  giying  intelligence,  acting  as  a  guide,  or  in  any 
manner  whatever,  aid  the  enemy  in  the  perpetration  thereof,  he  shall  suffer 
death  by  the  judgment  of  a  court-martial  as  a  traitor,  assassin,  or  spy,  if  the 
offence  be  committed  within  seventy  miles  of  the  headquarters  of  the  grand  or 
other  armies  of  these  States  where  a  general  officer  commands." — Journals  of 
Congress,  vol.  ii,  pp.  459,  460. 

So  stood  the  law  until  the  adoption  of  the  Constitution  of  the 
United  States.  Every  well-informed  man  knows  that  at  the  time  of 
the  passage  6f  these  acts,  the  courts  of  justice  having  cognizance  of 
all  crimes  against  persons,  were  open  in  many  of  the  States,  and  that 
by  their  several  constitutions  and  charters,  which  were  then  the 
supreme  law  for  the  punishment  of  crimes  committed  within  their 
respective  territorial  limits,  no  man  was  liable  to  conviction  but  by 
the  verdict  of  a  jury.  Take,  for  example,  the  provisions  of  the  con- 
stitution of  North  Carolina,  adopted  on  the  10th  of  November,  1776, 
and  in  full  force  at  the  time  of  the  passage  of  the  last  resolution  by 
Congress  above  cited,  which  provisions  are  as  follows: 

"  That  no  freeman  shall  be  put  to  answer  any  criminal  charge  but  by  indict- 
ment, presentment,  or  impeachment." 

'•  That  no  freeman  shall  be  convicted  of  any  crime  but  by  the  unanimous 
verdict  of  a  jury  of  good  and  lawful  men  in  open  court,  as  heretofore  used." 

This  was  the  law  in  1778  in  all  the  States,  and  the  provision  for  a 
trial  by  jury  every  one  knows  meant  a  jury  of  twelve  men,  impan- 
elled and  qualified  to  try  the  issue  in  a  civil  court.  The  conclusion 
is  not  to  be  avoided,  that  these  enactments  of  the  Congress  under  the 
Confederation  set  aside  the  trial  by  jury  within  the  several  States,  and 
expressly  provided  for  the  trial  by  court-martial  of  "any  of  the  in- 
habitants" who,  during  the  revolution,  might,  contrary  to  the  pro- 
visions of  said  law,  and  in  aid  of  the  public  enemy,  give  them 
intelligence,  or  kill  any  loyal  citizens  of  the  United  States,  or  enter 
into  any  combination  to  kill  or  carry  them  away.  How  conies  it,  if 
the  argument  of  the  counsel  be  true,  that  this  enactment  was 
passed  by  the  Congress  of  1778,  when  the  constitutions  of  the  several 


29 

States  at  that  day  as  fully  guaranteed  trial  by  jury  to  every  person 
held  to  answer  for  a  crime,  as  does  the  Constitution  of  the  United 
States  at  this  hour?  Notwithstanding  this  fact,  I  have,  yet  to  learn 
that  any  loyal  man  ever  challenged,  during  all  the  period  of  our  con- 
flict for  independence  and  nationality,  the  validity  of  that  law  for  the 
trial,  for  military  offences,  by  military  tribunals,  of  all  offenders,  as  the 
law,  not  of  peace,  but  of  war,  and  absolutely  essential  to  the  prosecu- 
tion of  war.  I  may  be  pardoned  for  saying  that  it  is  the  accepted 
common  law  of  nations,  that  martial-Taw  is,  at  all  times  and  every- 
where, essential  to  the  successful  prosecution  of  war,  whether  it  be  a 
civil  or  a  foreign  war.  The  validity  of  these  acts  of  the  Continental 
and  Confederate  Congress  I  know  was  challenged,  but  only  by  men 
charged  with  the  guilt  of  their  country's  blood. 

Washington,  the  peerless,  the  stainless,  and  the  just,  with  whom  God 
walked  through  the  night  of  that  great  trial,  enforced  this  just  and 
wise  enactment  upon  all  occasions.  On  the  30th  of  September,  1780, 
Joshua  H.  Smith,  by  the  order  of  General  Washington,  was  put  upon 
his  trial  before  a  court-martial,  convened  in  the  State  of  New  York, 
on  the  charge  of  there  aiding  and  assisting  Benedict  Arnold,  in  a 
combination  with  the  enemy,  to  take,  kill,  and  seize  such  loyal  citizens 
or  soldiers  of  the  United  States  as  were  in  garrison  at  West  Point. 
Smith  objected  to  the  jurisdiction,  averring  that  he  was  a  private  citi- 
zen, not  in  the  military  or  naval  service,  and  therefore  was  only  amen- 
able to  the  civil  authority  of  the  State,  whose  constitution  had  guaran- 
teed the  right  of  trial  by  jury  to  all  persons  held  to  answer  for  crime. 
(Chandler's  Criminal  Trials,  vol.  2,  p.  187.)  The  constitution  of  New- 
York  then  in  force  had  so  provided;  but,  notwithstanding  that,  the 
court  overruled  the  plea,  held  him  to. answer,  and  tried  him.  I  re- 
peat, that  when  Smith  was  thus  tried  by  court-martial,  the  constitu- 
tion of  New  York  as  fully  guaranteed  trial  by  jury  in  the  civil  courts 
to  all  civilians  charged  and  held  to  answer  for  crimes  within  the  limits 
of  that  State,  as  does  the  Constitution  of  the  United  States  guarantee 
such  trial  within  the  limits  of  the  District  of  Columbia.  By  the 
second  of  the  Articles  of  Confederation  each  State  retained  "its 
sovereignty,"  and  every  power,  jurisdiction,  and  right  not  expressly 
delegated  to  the  United  States  in  Congress  assembled.  By  those 
articles  there  was  no  express  delegation  of  judicial  power;  therefore 
the  States  retained  it  fully. 

If  the  military  courts,  constituted  by  the  commander  of  the  army  of 
the  United  States  under  the  Confederation,  who  was  appointed  only  by 
a  resolution  of  the  Congress,  without  any  express  grant  of  power  to 


30 

authorize  it— his  office  not  being  created  by  the  act  of  the  people  in 
their  fundamental  law— had  jurisdiction  in  every  State  to  try  and  put 
to  death  "any  inhabitant"  thereof  who  should  kill  any  loyal  citizen 
or  enter  into  "any  combination"  for  any  such  purpose  therein  iu 
time  of  war,  notwithstanding  the  provisions  of  the  constitution  and 
laws  of  such  States,  how  can  any  man  conceive  that  under  the  Con- 
stitution of  the  United  States,  which  is  the  supreme  law  over  every 
State,  anything  in  the  constitution  and  laws  of  such  State  to  the  con- 
trary notwithstanding,  and  the  supreme  law  over  every  Territory  of  the 
republic  as  well,  the  Commander-in-chief  of  the  army  of  the  United 
States,  who  is  made  such  by  the  Constitution,  and  by  its  supreme  au- 
thority clothed  with  the  power  and  charged  with  the  duty  of  direct- 
ing and  controlling  the  whole  military  power  of  the  United  States  in 
time  of  rebellion  or  invasion,  has  not  that  authority  ? 

I  need  not  remind  the  court  that  one  of  the  marked  differences  be- 
tween the  Articles  of  Confederation  and  the  Constitution  of  the  United 
States  was,  that,  under  the  Confederation,  the  Congress  was  the  sole 
depository  of  all  federal  power.  The  Congress  of  the  Confederation, 
said  Madison,  held  "the  command  of  the  army."  (Fed.,  No.  38.)  Has 
the  Constitution,  which  was  ordained  by  the  people  the  better  "to 
insure  domestic  tranquillity  and  to  provide  for  the  common  defence, ''so 
lettered  the  great  power  of  .^elf-defence  against  armed  insurrection 
or  invasion  that  martial  law,  so  essential  in  war,  is  forbidden  by 
that  great  instrument?  I  will  yield  to  no  man  in  reverence  for  or 
obedience  to  the  Constitution  of  my  country,  esteeming  it,  as  I  do,  a 
new  evangel  to  the  nations,  embodying  the  democracy  of  the  New 
Testament — the  absolute  equality  of  all  men  before  the  law,  in  respect 
of  those  rights  of  human  nature  which  are  the  gift  of  God,  and  there- 
fore as  universal  as  the  material  structure  of  man.  Can  it  be  that 
this  Constitution  of  ours,  so  divine  in  its  spirit  of  justice,  so  benefi- 
cent in  its  results,  so  full  of  wisdom  and  goodness  and  truth,  under 
which  we  became  one  people,  a  great  and  powerful  nationality,  has, 
in  terms  or  by  implication,  denied  to  this  people  the  power  to  crush 
armed  rebellion  by  war,  and  to  arrest  and  punish,  during  the  exist- 
ence of  such  rebellion,  according  to  the  laws  of  war  and  the  usages 
of  nations,  secret  conspirators,  who  aid  and  abet  the  public  enemy  ? 

Here  is  a  conspiracy,  organized  and  prosecuted  by  armed  traitors 
and  hired  assassins,  receiving  the  moral  support  of  thousands 
iu  every  State  and  district,  who  pronounced  the  war  for  the 
Union  a  failure,  and  your  now  murdered  but  immortal  Commander-in- 
Chief  a  tyrantj  the  object  of  which  conspiracy,  as  the  testimony 


31 

shows,  was  to  aid  the  tottering  rebellion-which  struck  at  the  nation's 
life.  It  is  in  evidence  that  Davis,  Thompson,  and  others,  chiefs  in 
this  rebellion,  in  aid  of  the  same,  agreed  and  conspired  with  others  to 
poison  the  fountains  of  water  which  supply  your  commercial  metrop- 
olis, and  thereby  murder  its  inhabitants;  to  secretly  deposit  in  the 
habitations  of  the  people  and  in  the  ships  in  your  harbors  inflammable 
materials,  and  thereby  destroy  them  by  fire;  to  murder  by  the  slow 
and  conouming  torture  of  famine  your  soldiers,  captive  in  their  hands; 
to  import  pestilence  in  infected  clothes  to  be  distributed  in  your  cap- 
ital and  camps,  and  thereby  murder  the  surviving  heroes  and  defend- 
ers of  the  republic,  who,  standing  by  the  holy  graves  of  your  unre- 
turning  brave,  proudly  and  defiantly  challenge  to  honorable  combat 
and  open  battle  all  public  enemies,  that  their  country  may  live;  and, 
finally,  to  crown  this  horrid  catalogue  of  crime,  this  sum  of  all  human 
atrocities,  conspired,  as  charged  upon  your. record,  with  the  accused 
and  John  Wilkes  Booth  and  John  H.  Surratt,  to  kill  and  murder  in 
your  capital  the  executive  officers  of  your  government  and  the  com- 
mander of  your  armies.  When  this  conspiracy,  entered  into  by  these 
traitors,  is  revealed  by  its  attempted  execution,  and  the  foul  and 
brutal  murder  of  your  President  in  the  capital,  you  are  told  that  it  is 
unconstitutional,  in  order  to  arrest  the  further  execution  of  the  con- 
spiracy, to  interpose  the  military  power  of  this  government  for  the 
arrest,  without  civil  process,  of  any  of  the  parties  thereto,  and  for 
their  trial  by  a  military  tribunal  of  justice.  If  any  such  rule  had 
obtained  during  our  struggle  for  independence,  we  never  would  have 
been  a  nation.  If  any  such  rule  had  been  adopted  and  acted  upon 
now,  during  the  fierce  struggle  of  the  past  four  years,  no  man  can 
say  that  our  nationality  would  have  thus  long  survived. 

The  whole  people  of  the  United  States  by  their  Constitution  have 
created  the  office  of  President  of  the  United  States  and  commander- 
in-chief  of  the  army  and  navy,  and  have  vested,  by  the  terms  of  thai 
Constitution,  in  the  person  of  the  President  and  cornmander-in-chief, 
the  power  to  enforce  the  execution  of  the  laws,  and  preserve,  protect, 
and  defend  the  Constitution. 

The  question  may  well  be  asked  :  If,  as  commander-in-chief,  the 
President  may  not,  in  time  of  insurrection  or  war,  proclaim  and  ex- 
ecute martial  law,  according  to  the  usages  of  nations,  how  he  can 
successfully  perform  the  duties  of  his  office — execute  the  laws,  pre- 
serve the  Constitution,  suppress  insurrection,  and  repel  invasion? 

Martial  law  and  military  tribunals  are  as  essential  to  the  successful 
prosecution  of  war  as  are  men,  and  arms,  and  munitions.  The  Cousti- 


totion  of  the  United  States  has  vested  the  power  to  declare  war  and 
raise  armies  and  navies  exclusively  in  the  Congress,  and  the  power 
to  prosecute  the  war  and  command  the  army  and  navy  exclusively  in 
the  President  of  the  United  States.  As,  under  the  Confederation, 
the  commander  of  the  army,  appointed  only  by  the  Congress  was 
by  the  resolution  of  that  Congress  empowered  to  act  as  he  might  think 
proper  for  the  good  and  welfare  of  the  service,  subject  only  to  such 
restraints  or  orders  as  the  Congress  might  give  ;  so,  under  the  Con- 
stitution,  the  President  is,  by  the  people  who  ordained  that  Consti- 
tution  and  declared  him  commander-in-chief  of  the  army  and  navy, 
vested  with  full  power  to  direct  and  control  the  army  and  navy  of 
the  United  States,  and  employ  all  the  forces  necessary  to  preserve, 
protect,  and  defend  the  Constitution  and  execute  the  laws-,  as  enjoined 
by  his  oath  and  the  very  letter  of  the  Constitution,  subject  to  no 
restriction  or  direction  save  such  as  Congress  may  from  time  to  time 

prescribe. 

That  these  powers  for  the  common  defence,  intrusted  by  the  Con- 
stitution exclusively  to  the  Congress  and  the  President,  are,  in  time  of 
civil  war  or  foreign  invasion,  to  be  exercised  without  limitation  or 
restraint,  to  the  extent  of  the  public  necessity,  and  without  any  in- 
tervention of  the  federal  judiciary  or  of  State  constitutions  or  State 
laws,  are  facts  in  our  history  not  open  to  question. 

The  position  is  not  to  be  answered  by  saying  you  make  the  Ameri- 
can Congress  thereby  omnipotent,  and  clothe  the  American  Execu- 
tive with  the  asserted  attribute  of  hereditary  monarchy — the  king 
can  do  no  wrong.  Let  the  position  be  fairly  stated — that  the  Con- 
gress and  President,  in  war  as  in  peace,  are  but  the  agents  of  the 
whole  people,  and  that  this  unlimited  power  for  the  common  defence 
against  armed  rebellion  or  foreign  invasion  is  but  the  power  of  the 
people  intrusted  exclusively  to  the  legislative  and  executive  depart- 
ments as  their  agents,  for  any  and  every  abuse  of  which  these  agents 
are  directly  responsible  to  the  people — and  the  demagogue  cry  of  an 
omnipotent  Congress,  and  an  Executive  invested  with  royal  preroga- 
tives, vanishes  like  the  baseless  fabric  of  a  vision.  If  the  Congress, 
corruptly,  or  oppressively,  or  wantonly  abuse  this  great  trust,  the 
people  by  the  irresistible  power  of  the  ballot  hurl  them  from  place. 
If  the  President  so  abuse  the  trust,  the  people  by  their  Congress 
withhold  supplies,  or  by  impeachment  transfer  the  trust  to  better 
hands,  strip  him  of  the  franchises  of  citizenship  and  of  office,  and 
declare  him  forever  disqualified  to  hold  any  position  of  honor,  trust, 
or  power  under  the  government  of  his  country. 


33 

I  can  understand  very  well  why  men  should  tremble  at  the  exercise 
of  this  great  power  by  a  monarch  whose  person,  by  the  constitution 
of  his  realm,  is  inviolable,  but  I  cannot  conceive  how  any  American 
citizen,  who  has  faith  in  the  capacity  of  the  whole  people  to  govern 
themselves,  should  give  himself  any  concern  on  the  subject.  Mr. 
Hallam,  the  distinguished  author  of  the  Constitutional  History  of 
England,  has  said  : 

"Kitigs  love  to  display  the  divinity  with  which  their  flatterers  invest  them 
in  nothing:  so  much  as  in  the  instantaneous  execution  of  their  will,  and  to  stand 
revealed,  as  it  were,  in  the  storm  and  thunderbolt  when  their  power  breaks 
through  the  operation  of  secondary  causes  and  awes  a  prostrate  nation  without 
the  intervention  of  law."  • 

How  just  are  such  words  when  applied  to  an  irresponsible  monarch  1 
how  absurd,  when  applied  to  a  whole  people1,  acting  through  their 
duly  appointed  agents,  whose  will,  thus  declared,  is  the  supreme  law, 
to  awe  into  submission  and  peace  and  obedience,  not  a*  prostrate 
nation,  but  a  prostrate  rebellion  !  The  same  great  author  utters  the 
fact  which  all  history  attests,  when  he  says  : 

"  It  has  been  usual  for  all  governments  during  actual  rebellion  to  proclaim 
martial  law  for  the  suspension  of  civil  jurisdiction ;  and  this  anomaly,  I  must 
admit,"  he  adds,  "  is  very  far  from  being  less  indispensable  at  such  unhappy 
seasons  where  the  ordinary  mode  of  trial,  is  by  jury,  than  where  the  right  of 
decision  resides  in  the  court." — Const.  Hist.,  vol.  i,  ch.  5,  p.  326. 

That  the  power  to  proclaim  martial  law  and  fully  or  partially  sus- 
pend the  civil  jurisdiction,  federal  and  state,  in  time  of  rebellion  or 
civil  war,  and  punish  by  military  tribunals  all  offences  committed  in 
aid  of  th,e  public  enemy,  is  conferred  upon  Congress  and  the  Execu- 
tive, necessarily  results  from  the  unlimited  grants  of  power  for  the 
common  d-efence  to  which  «I  have  already  briefly  referred.  I  may 
be  pardoned  for  saying  that  this  position  is  not  assumed  by  me  for 
the  purposes  of  this  occasion,  but  that  early  in  the  first  year  of  this 
great  struggle  for  our  national  life  I  proclaimed  it  as  9,  representa- 
tive of  the  people,  under  the  obligation  of  my  oath,  and,  as  I  then 
believed,  and  still  believe,  upon  the  authority  of  the  great  men  who 
formed  and  fashioned  the  wise  and  majestic  fabric  of  American  gov- 
ernment. 

Some  of  the  citations  which  I  deemed  it  my  duty  at, that  time  to 
make,  and  some  of  which  I  now  reproduce,  have,  I  am  pleased  to 
say,  found  a  wider  circulation  in  books  that  have  since  been  pub- 
lished by  others. 

When  the  Constitution  was  on  trial  for  its  deliverance  before  the 


34 

people  of  the  several  States,  its  ratification  was  opposed  on  the 
ground  that  it  conferred  upon  Congress  and  the  Executive  unlimited 
power  for  the  common  defence.  To  all  such  objectors — and  they  were 
numerous  in  every  State — that  great  man,  Alexander  Hamilton,  whose 
words  will  live  as  long  as  our  language  lives,  speaking  to  the  listening 
people  of  all  the  States  and  urging  them  riot  to  reject  that  matchless 
instrument  which  bore  the  name  of  Washington,  said  : 

"  The  authorities  essential  to  the  care  of  the  common  defence  are  these :  To 
raise  armies ;  to  build  and  equip  fleets;  to  prescribe  rules  for  the  government 
of  both;  to  direct  their  operations;  to  provide  for  their  support.  These  pow- 
ers ought  to  exist  WITHOUT  LIMITATION  ;  because  it  is  impossible  to  foresee  or 
define  the  extent  and  variety  of  national  exigencies,  and  the  correspondent  ex- 
tent and  variety  of  the  means  which  may  be  necessary  to  satisfy  them. 

"The  circumstances  that  endanger  the  safety  of  nations  are  infinite;  and 
for  this  reason  no  constitutional  shackles  can  wisely  be  imposed  on  the  power 
to  which  the  care  of  it  is  committed.  *  *  This  power  ought 

to  be  under  the  direction  of  the  same  councils  which  are  appointed  to  preside 
over  the  common  defence.  *  *  It  must  be  admitted,  as  a  ne- 

cessary consequence,  that  there  can  be  no  limitation  of  that  authority  which  is 
to  provide  for  the  defence  and  protection  of  the  community,  in  any  manner  es- 
sential to  its  efficacy;  that  is,  in  any 'matter  essential  to  the  formation,  direction, 
or  support  of  the  national  forces." 

He  adds  the  further  remark  :  "  This  is  one  of  those  truths  which,  to  a  cor- 
rect and  unprejudiced  mind,  carries  its  own  evidence  along  with  it;  and  may 
be  obscured,  but  cannot  be  made  plainer  by  argument  or  reasoning.  It  rests 
upon  axioms  as  simple  as  they  are  universal — the  means  ought  to  be  propor- 
tioned to  the  end;  the  persons  from  whose  agency  the  attainment  of  any  end  is 
expected  ought  to  possess  the  means  by  which  it  is  to  be  attained." — Fcdcral- 
t&t,  No.  23. 

In  the  same  great  contest  for  the  adoption  of  the  Constitution 
Madison,  sometimes  called  the  Father  of  the  Constitution,  said: 

"  Is  the  power  of  declaring  Avar  necessary?  No  man  will  answer  this  ques- 
tion in  the  negative.  *  *  Is  the  power  of  raising  armies  and 
equipping  fleets  necessary  ?  *  .  *  *  It  is  involved  in  the  power 
of  self-defence.  ^  *  *  With  what  color  of  propriety  could 
the  force  necessary  for  defence  be  limited  by  those  who  cannot  limit  the  force  of 

The  means  of  security  can  only  be  regu- 
lated by  the  means  and  the  danger  of  attack.  *  *  *  It  is  in 
vain  to  oppose  constitutional  barriers  to  the  impulse  of  self-preservation.  It  is 
worse  than  in  vain,  because  it  plants  in  the  Constitution  itself  necessary  usur- 
pations of  power."— Federalist,  No.  41. 

With  this,  construction,  proclaimed  both  by  the  advocates  and  oppo- 


35 

nents  of  its  ratification,  the  Constitution  of  the  United  States  was  ac- 
cepted and  adopted,  and  that  construction  has  been  followed  and 
acted  upon,  by  every  department  of  the  government  to  this  day. 

It  was  as  well  understood  then  in  theory  as  it  has  since  been 
illustrated  in  practice,  that  the  judicial  power,  both  federal,  and 
State,  had  no  voice  and  could  exercise  no  authority  in  the  conduct 
and  prosecution  of  a  war,,  except  in  subordination  to  the  political  de- 
partment of  the  government.  The  Constitution  contains  the  signifi- 
cant provision,  ' '  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  i-t." 

What  was  this  but  a  declaration,  that  in  time  of  rebellion,  or  in- 
vasion,  the  public  safety  is  the  highest  law  ? — that  so  far  as  necessary 
the  civil  courts  (of  which  the  Commander-in-Chief,  under  the  direction 
of  Congress,  shall  be  the  sole  judge)  must  be  silent,  and  the  rights 
of  each  citizen,  as  secured  in  time  of  peace,'  must  yield  to  the  wants, 
interests,  and.  necessities  of  the  nation?  Yet  we  have  been  gravely 
told  by  the  gentleman,  in  his  argument,  that  the  maxim,  salus  populi 
supremaestlex,  is  but  fit  for  a  tyrant's  use..  Those  grand. men,  whom 
God  taught  to  Build  the  fabric  of  empire,  thought  otherwise, 
when  they  put  that  maxim  into  the  Constitution  of  their  country.  It 
is  very  clear  that  the  Copstitution  recognizes  the  great  principle 
which  underlies  the  structure  of  society  and  of  all  civil  government  ; 
that  no  man  lives  for  himself  alone,  but  each  for  all ;  that,  if  need  be,  some 
must  die,  that  the  State  may  live,  because  at  best  the  individual  is  but 
for  to-day,  while  the  commonwealth  is  for  all  time,  I  agree  with  the 
gentleman  in  the  maxim  which  he  borrows  from  Aristotle,  "Let  tlie 
public  weal  be  under  the  protection  of  the  law  ;"  but  I  claim  that  in 
war,  as  in  peace,  by  the  very  tefrns  of  the  Constitution  of  the  coun- 
try, the  public  safety  is  under  the  protection  of  the  law;  that  the 
Constitution  .itself  has- provided  for  the  declaration  of  war  for  the  com- 
mon defence,  to  suppress  rebellion,  to  repel  invasion,  and,  by  express 
terms,  has  declared  that  whatever  is  necessary  to  make  the  prosecu- 
tion of  the  war  successful,  may  be  done,  and  ought  to  be  done,  and 
is  therefore  constitutionally  lawful. 

Who  will  dare  to  say  that  in  time  of  civil  war  "no  person  shall  be 
deprived  of  life,  liberty,  and  property,  without  due  process  of  law  ?" 
This  is  a  provision  of  your  Constitution  than  which  there  is  none 
more  just  or  sacred  in  it;  it  is,  however,  only  the  law  of  peace,  not 
of  war.  In  peace,  that  wise  provision  of  the  Constitution  must  be, 
and  is,  enforced  by  the  civil  courts  ;  in  war,  it  must  be,  and  is,  to  a 


36 

great  extent,  inoperative  and  disregarded.  The  thousands  slain  by 
your  armies  in  battle  were  deprived  of  life  "  without  due  process  of 
law."  All  spies  arrested,  convicted,  and  executed  by  your  military 
tribunals  in  time  of  war  are  deprived  of  liberty  and  life  "without 
due  process  of  law  ;';  all  enemies  captured  and  held  as  prisoners  of 
war  are  deprived  of  liberty  "without  due  process  of  law  j"  all  owners 
whose  property  is  forcibly  seized  and  appropriated  in  war  are  de- 
prived of  their  property  "  without  due  process  of  law."  The  Con- 
stitution recognizes  the  principle  of  common  law,  that  every  man's 
house  is  his  castle;  that  his  home,  the  shelter  of  his  wife  and  children, 
is  his  most  sacred  possession;  and  has  therefore  specially  provided, 
"  that  no  soldier  shall  in  time  of  peace  be  quartered  in  any  house, 
without  the  consent  of  its  owner,  nor  in  "time  of  war,  but  in  a  manner 
to  be  prescribed  by  law.  [Ill  Amend. ;]  thereby  declaring  that,  in  time 
of  war,  Congress  may  by  law  authorize,  as  it  has  done,  that  without 
the  consent  and  against  the  consent  of  the  owner,  the  soldier  may  be 
quartered  in  any  man's  house,  and  upon  any  man's  hearth.  What  I 
have  said  illustrates  the  proposition,  that  in  time  of  war  the  civil  tribu- 
nals of  justice  are  wholly  or  partially  silent,  as  the  public  safety  may  re- 
quire; thatthe  limitations  and  provisions  of  the  Constitution  in  favor 
of  life,  liberty  and  property  are  therefore  wholly  or  partially  sus- 
pended. In  this  I  am  sustained  by  an  authority  second  to  none  with 
intelligent  American  citizens.  Mr.  John  Quincy  Adams,  than  whom 
a,  purer  man  or  a  wiser  statesman  never  ascended  the  chair  of  the 
chief  magistracy  in  America,  said  in  his  place  in  the  House  of  Rep- 
resentatives, in  183G,  that: 

"  In  tin-  authority  given  to  Congress  by  the  Constitution  of  the  United  States 
to  declare  war,  all  the  powers  incident  to  war  are  by  necessary  implication  con- 
ferred upon  the  government  of  the  United  States.  Now  the  powers  incidental 
to  war  are  derived,  not  from  their  internal  municipal  source,  but  from  the  laws 
and  usages  of  nations.  Then;  are,  then,  in  the  authority  of  Congress  and  of  the 
Executive  two  classes  of  powers  altogether  different  in  their  nature  and  often 
incompatible  with  each  other,  the  war  power  and  the  peace  power.  The  peace 
power  is  limited  by  regulations  and  restricted  by  provisions  prescribed  within 
the  Constitution  itself.  The  war  power  is  limited  only  by  the  laws  and  usage 
of  nations.  This  power  is  tremendous;  it  is  strictly  constitutional,  but  it 
breaks  down  every. barrier  so  anxiously  erected  for  the  protection  of  liberty,  of 
property,  and  of  life." 

If  this  be  so,  how  can  there  be  trial  by  jury  for  military  offences 
in  time  of  civil  war?  If  you  cannot,  and  do  not,  try  the  armed 
enemy  before  you  shoot  him,  or  the  captured  enemy  before  you  ira- 


37 

prison  him,  why  should  you  be  held  to  op.en  the  civil  courts  and  try 
the  spy,  the  conspirator,  and  the  assassin,  in  the  secret  service  of 
the  public  enemy,  by  jury,  before  you  convict  and  punish  him  ? 
Why  not  clamor  against  holding  imprisoned  the  captured  armed 
rebels,  deprived  pf  their  liberty  without  due  process  of  law  ?  Are 
they  not  citizens  ?  Why  not  clamor  against  slaying  for  their  crime 
of  treason,  which  is  cognizable  in  the  civil  courts,  by  your  rifled 
ordnance  and  the  leaden  hail  of  your  musketry  in  battle,  these  public 
enemies,  .without  trial  by  jury?  Are  they  not  citizens  ?  Why  is  the 
clamor  confined  exclusively  to  the  trial  by  military  tribunals  of  jus- 
tice of  traitorous  spies,  traitorous  conspirators,  and  assassins  hired  to 
do  secretly  what  the  armed  rebel  attempts  to  do  openly — murder 
your  nationality  by  assassinating  its  defenders  and  its  executive  bffi- 
cers  ?  Nothing  can  be  clearer  than  that  the  rebel  captured  prisoner, 
being  a  citizen  of  the  republic,  is  as  much  entitled  to  trial  by  jury 
before  he  is  committed  to  prison,  as  the  spy,  or  the  aider  and  abettor 
of  the  treason  by  conspiracy  ttnd  assassination,  being  a  citizen,  is 
entitled  to  such  trial  by  jury,  before  he  is  subjected  to  the  just 
punishment  of  the  law  for  his  great  crime.  I  think  that  in  time  of 
war  the  remark  of  Montesquieu^  touching  the  civil  judiciary,  is  true  : 
that  "it  is  next  to  nothing. "  Hamilton  well  said,  "The  Executive 
holds  the  sword  of  the  community  ;  the  judiciary  has  no  direction  of 
the  strength  of  society  ;  it  has  neither  force  nor  will ;  it  has  judg- 
ment alone,  and  is  dependent  for  the  execution  of  that  upon  the  arm 
of  the  Executive."  The  people  of  these  States  so  understood  the 
Constitution,  and  adopted  it,  and  intended  thereby,  without  limita- 
tion or  restraint,  to  empower  their  Congress  and  Executiye-to  author- 
ize by  law,  and  execute  by  force,  whatever  the  public  safety  might 
require,  to  suppress  rebellion  or  repel  invasion. 

Notwithstanding  all  that  has  been  said  by  the  counsel  for  the  ac- 
cused to  the  contrary,  the  Constitution  has  received  this  construction 
from  the  day  of  its  adoption  to  this  hour.  The  Supreme  Court  of 
the  United  States  has  solemnly  decided  that  the  Constitution  has  con- 
ferred upon  the  government  authority  to  employ  all  the  means  neces- 
sary to  the  faithful  execution  of  all  the  powers  which  that  Constitu- 
tion enjoins  upon  the  government  of  the  United  States,  and  upon 
every  department  and  every  officer  thereof.  Speaking  of  that  pro- 
vision of  the  Constitution  which  provides  that  ' '  Congress  shall  have 
power  to  make  all  laws  that  may  be  necessary  and  proper  to  carry 
into  effect  all  powers  granted  to  the  gftvernment  of 'the  United  States, 
or  to  any  department  or  officer  thereof,"  Chief  Justice  Marshall,  in 


38 

bis  great  decision  in-  the  case  of  McCulloch  vs.  State  of  Maryland, 
says : 

"The  powers  given  to  the  government  imply  the  ordinary  means  of  execu- 
tion, and  the  government,  in  all  sound  reason  and  fair  interpretation,  must  have 
the  choice  of  the  means  which  it  deems  the  most  convenient  and  appropriate  to 
the  execution  of  the  power.  *  *  *  The  powers  of  the  government 
were  given  for  the  welfare  of  the  nation;  they  were  intended  to  endure  for  ages 
to  come,  and  to  be  adapted  to  the  various  crises  in  human  affairs.  To  prescribe 
the  specific  means  by  which  government  should,  in  all  future  time,  execute  its 
upwer,  and  to  confine  the  choice  of  means  to  such  narrow  limits  as  should  not 
leave  it  in  the  power  of  Congress  to  adopt  any  which  might  be  appropriate  and 
conducive  to  the  end,  would  be  most  unwise  and  pernicious." — (4  Wheaton,  420.) 

Words  fitly  spoken  !  which  illustrated  at  the  time  of  their  utterance 
the  wisdom  of  the  Constitution  in  providing  this  general  grant  of 
power  to  meet  every  possible  exigency  which  the  fortunes  of  war 
might  cast  upon  the  country,  and  the  wisdom  of  which  words,  in 
turn,  has  been  illustrated  to-day  by  the  gigantic  and  triumphant 
struggle  of  the  people  during  the  last  four  years  for  the  supremacy 
of  the  Constitution,  and  in  exact  accordance  with  its  provisions.  In 
the  light  of  these  wonderful  events,  the  words  of  Pinckney,  uttered 
when  the  illustrious  Chief  Justice  had  concluded  this  opinion,  "The 
Constitution  of  my  country  is  immortal!"  seem  to  have  become  words  of 
prophecy.  Has  not  this  great  tribunal,  through  the  chief  of  all 
its  judges,  by  this  luminous  and  profound  reasoning,  declared  that 
the  government  may  by  law  authorize  the  Executive  to  employ,  in 
the  prosecution  of  war,  the  ordinary  means,  and  all  the  means  neces- 
sary and  adapted  to  the  end?  And  in  the  other  decision,  before  re- 
ferred to,  in  the  8th  of  Cranch,  arising  during  the  late  war  with 
Great  Britain,  Mr.  Justice  Story  said  : 

"  When  the  legislative  authority,  to  whom  the  right  to  declare  war  is  con- 
fided, has  declared  war  in  its  most  unlimited  manner,  the  executive  authority, 
to  whom  the  execution  of  the  war  is  confided,  is  bound  to  carry  it  into  effect. 
lie  has  a  discretion  vested  in  him  as  to  the  manner  and  extent,  but  he  cannot 
lawfully  transcend  the  rules  of  warfare  established  among  civilized  nations. 
He  cannot  lawfully  exercise  powers  or  authorize  proceedings  which  the  civil- 
ized world  repudiates  and  disclaims.  The  sovereignty,  as  to  declaring  war  and 
limiting  its  effects,  rests  with  the  legislature.  The  sovereignty  as  to  its  execu- 
tion rests  with  the  President."— (Brown  vs.  United  States,  8  Cranch,  153.) 

Has  the  Congress,  to  whom  is  committed  the  sovereignty  of  the 
whole  people  to  declare  war,  by  legislation  restricted  the  President, 


39 

or  attempted  to  restrict  him,  in  the  prosecution  of  this  war  for  the 
Union,  from  exercising  all  the  "powers"  and  adopting  all  the  "pro- 
ceedings" usually  approved  and  employed  by  the  civilized  world  ? 
He  would,  in  my  judgment,  be  a  bold  man  who  asserted  that  Con- 
gress has  so  legislated;  and  the  Congress  which  should  by  law  fetter 
the  executive  arm  when  raised  for  the  common  defence  would,  in 
my  opinion,  be  false  to  their  oath.  That  Congress  may  prescribe 
rules  for  the  government  of  the  army  and  navy  and  the  militia  when 
in  actual  service,  by  articles  of  war,  is  an  express  grant  of  power  in 
the  Constitution,  which  Congress  has  rightfully  exercised,  and  which 
the  Executive  must  and  does  obey.  That  Congress  may  aid  the 
Executive  by  legislation  in  the  prosecution  of  a  war,  civil  or  foreign, 
is  admitted.  That  Congress  may  restrain  the  Executive,  and  arraign, 
try,  and  condemn  him  for  wantonly  abusing  the  great  trust,  is  ex- 
pressly declared  in  the  Constitution.  That  Congress  shall  pass  all 
laws  NECESSARY  to  enable  the  Executive  to  execute  the  laws  of  the 
Union,  suppress  insurrection,  and  repel  invasion,  is  one  of  the  express 
requirements  of  the  Constitution,  for  the  performance  of  which  the 
Congress  is  bound  by  an  oath. 

What  was  the  legislation  of  Congress  when  treason  fired'  its  first 
gun  on  Sumter?  By  (the  act  of  1795  it  is  provided  that  whenever 
the  laws  of  the  United  States  shall  be  opposed,  or  the  execution 
thereof  obstructed,  in  any  State,  by  combinations  too  powerful  to  be 
suppressed  by  the  ordinary  course  of  judicial  proceeding  or  by  the 
powers  vested  in  the  marshals,  it  shall  be  lawful  by  this  act  for  the 
President  to  call  forth  the  militia  of  such  State,  or  of  any  other  State  or 
States,  as  may  be  necessary  to  suppress  such  combinations  and  to  cause 
the  laws  to  be  executed.  (1st  Statutes  at  Large,  424.)  By  the  act  of 
1807  it  is  provided  that  in  case  of  insurrection  or  obstruction  to  the 
laws,  either  of  the  United,  States  or  of  any  individual- State  or  Terri- 
tory, where  it  is  lawful  for  the  President  of  theUnited  States  to  call  forth 
the  militia  for  the  purpose  of  suppressing  such  insurrection  or  of  caus- 
ing the  laws  to  be  duly  executed,  it  shall  be  lawful  for  him  to  employ 
for  such  purpose  such  part  of  the  land  or  naval  forces  of  the  United 
States  as  shall  be  judged  necessary.  (2d  Statutes  at  Large,  443.) 

Can  any  one  doubt  that  by  these  acts  the  President  is  clothed  with 
full  power  to  determine  whether  armed  insurrection  exists  in  any 
State  or  Territory  of  the  Union  ;  and  if  so,  to  make  war  upon  it  with 
all  the  force  he  may  deem  necessary  or  be  able  to  command  ?  By  the 
simple  exercise  of  this  great  power  it  necessarily  results  that  he  may, 
in  the  prosecution  of  the  war  for  the  suppression  of  such  insurrec- 


40 

tion.  suspend  as  far  as  may  be  necessary  the  civil  administration  of 
justice  by  substituting  in  its  stead  martial  law,  which  is  simply  the 
common  law  of  war.  If  in  such  a  moment  the  President  may  make 
no  arrests  without  civil  warrant,  and  may  inflict  no  violence  or  pen- 
alties on  persons  (as  is  claimed  here  for  the  accused,)  without  first 
obtaining  the  verdict  of  juries  and  the  judgment  of  civil  courts,  then 
is  this  legislation  a  mockery,  and  the  Constitution,  which  not  only 
authorized  but  enjoined  its  enactment,  but  a  glittering  generality 
and  a  splendid- bauble.  Happily  the  Supreme  Court  has  settled  all 
controversy  on  this  question.  In  speaking  of  the  Rhode  Island -insur- 
rection, the  court  say : 

"  The  Constitution  of  the  United  States,  as  far  as  it  has  provided  for  an 
emergency  of  this  kind  and  authorized  the  general  government  to  interfere  ill 
the  domestic  concerns  of  a  State,  has  treated  the  subject  as  political  in  its  na- 
ture and  placed  the  power  in  the  hands  of  that  department." 
"  By  the  act  of  1795  the  power  of  deciding  whether  the  exigency  has  arisen 
upon  which  the  government  of  the  United  States  is  bound  to  interfere  is  given 
to  the  President." 

The  court  add : 

"  When  the  President  has  acted  and  called  out  the  militia,  is  a  circuit  court 
of  the  United  States  authorized  to  inquire  whether  his  decision  was  right  1  If 
it  could,  then  it  would  become  the  duty  of  the  court,  provided  it  came  to  the 
conclusion  that  the  President  had  decided  incorrectly,  to  discharge  those  who 
were  arrested  or  detained  by  the  troops  in  the  service  of  the  United  States." 
*  "If  the  judicial  power  extends  so  far,  the  guarantee  con- 

tained in  the  Constitution  of  the  United  States  is  a  guarantee  of  anarchy  and 
not  of  order."  "  Yet  if  this  right  does  not  reside  in  the 

courts  when  the  coifflict  is  raging,  if  the  judicial  power  is  at  that  time  bound 
to  follow  the  decision  of  the  political,  it  must  be  equally  bound  when  the  con- 
test is  over.  It  cannot,  when  peace  is  restored,  punish  as  offences  and  crimes 
the  acts  which  it  before  recognized  and  was  bound  to  recftgnize  as  lawful." — 
Luther  vs.  Borden,  7  Howard,  42,  43. 

If  this  be  law,  what  becomes  of  the  volunteer  advice  of  the  vol- 
unteer counsel,  by  him  given  without  money  and  without  price,  to 
this  court,  of  their  responsibility — their  personal  responsibility,  for 
obeying  the  orders  of  the  President  of  the  United  States  in  trying 
persons  accused  of  the  murder  of  the  Chief  Magistrate  and  com- 
mander-in-chief  of  the  army  and  navy  of  the  United  States  in  time 
of  rebellion,  and  in  pursuance  of  a  conspiracy  entered  into  with  the 
public  enemy?  I  may  be  pardoned  for  asking  the  attention  of  the 
court  to  a  further  citation  from  this  important  decision,  in  which  the 
court  say,  the  employment  of  military  power  to  put  down  an  armed 


41 

insurrection  "is  essential  to  the  existence  of  every  government,  and 
is  as  necessary  to  the  States  of  this  Union  as  to  any  other  govern- 
ment j  and  if  the  government  of  the  State  deem  the  armed  opposition 
so  formidable  as  to  require  the  use  of  military  force  and  the  declara- 
tion of  MARTIAL  LAW,  we  see  no  ground  upon  which  this  court  can 
question  its  authority."  (Ibid.)  This  decision  in  terms  declared  that 
under  the'  act  of  1795  the  President  had  power  to  decide  and  did 
decide  the  question  so  as  to  exclude  further  inquiry  whether  the 
State  government  which  thus  employed  force  and  proclaimed  mar- 
tial law  was  the  government  of  the  State,  and  therefore  was  per- 
mitted to  act.  If  a  State  may  do  this,  to,  put  down  armed,  insurrec- 
tion, may  not  the  federal  government  as  well  ?  The  reason  of  the 
man  who  doubts  it  may  justly  be  questioned.  I  but  quote  the  .lan- 
guage of  that  tribunal,  in  another  case  before  cited,  when  I  say  the 
Constitution  confers  upon  the  President  the  whole  executive  power. 

We  have  seen  that  the  proclamation  of  blockade  made  by  the  Pres- 
ident was  affirmed  by  the  Supreme  Court  as  a  lawful  and.  valid  act, 
although  its  direct  effect  was  to  dispose  of  the  property  of  whoever 
violated  it,  whether  citizen  or  stranger.  It  is  difficult  to  perceive 
what  course  of  reasoning  can  be  adopted,  in  the  light  of  that  decision, 
which  will  justify  any  man  in  saying  that  the  President  had  not  the 
like  power  to  proclaim  martial  law  in  time  of  insurrection  against  the 
United  States,  and  to  establish,  according  to  the  customs  of  war  among 
civilized  nations,  military  tribunals  of  justice  for  its  enforcement,  and 
for  the  punishment  of  all  crimes  committed  in  the  interests  of  the 
public  enemy- 

These  acts  of  the  President  have,  however,  all  been  legalized  by 
the  subsequent  legislation  of  Congress,  although  the  Supreme  Court 
decided,  in  relation  to  the  proclamation  of  blockade,  that  no  such 
legislation  was  necessary.  By  the  act  of  August  6,  1861,  ch.  63, 
sec.  3,  it  is  enacted  that— 

"All  the  acts,  proclamations,  and  orders  of  the  President  of  the  United  States, 
after  the  4th  of  March,  1861,  respecting  the  army  and  navy  of  the  United  States, 
and  calling  out,  or  relating  to,  the  militia  or  volunteers  from  the  States,  are 
hereby  approved  in  all  respects,  legalized,  and  made  valid  to  the  same  extent 
and  with  the  same  effect  as  if,  they  had  been  issued  and  done  under  the  previous 
express  authority  and  direction  of  the  Congress  of  the  United  States." — (12 
Stat.  at  Large,  326.) 

This  act  legalized,  if  any  such  legalization  was  necessary,  all  that 
the  President  had  done  from  the  day  of  his  inauguration  to  that  hour, 
in  the  prosecution  of  the  war  for  the  Union.  He  had  suspended  the 


42 

privilege  of  the  writ  of  habeas  corpus,  and  resisted  its  execution  when 
issued  by  the  Chief  Justice  of  the  United  States;  he  had  called  out  and 
accepted  the  services  of  a  large  body  of  volunteers  for  a  period  not 
previously  authorized  by  law;  he  had  declared  a  blockade  of  the 
southern  ports;  he  had  declared  the  southern  States  in  insurrection: 
he  had  ordered  the  armies  to  invade  them  and  suppress  it;  thus  ex- 
er^isin^,  in  accordance  with  the  laws  of  war,  power  over  the  life,  the 
liberty,  and  the  property  of  the  citizens.  Congress  ratified  it  and 
affirmed  it. 

In  like  manner  and  by  subsequent  legislation  did  the  Congress  rat- 
ify and  affirm  the  proclamation  of  martial  law  of  September  25,  1862. 
That  proclamation,  as  the  court  will  have  observed,  declares  that 
durinf  the  existing  insurrection  all  rebels  and  insurgents,  their  aiders 
and  abettors  within  the  United  States,  and  all  persons  guilty  of  any 
disloyal  practice  affording  aid  and  comfort  to  the  rebels  against  the 
authority  of  the  United  States,  shall  be  subject  to  martial  law  and 
liable  to  trial  and  punishment  by  courts-martial  or  military  commission; 
and  second,  that  the  writ  of  habeas  corpus  is  suspended  in  respect  to 
all  persons  arrested,  or  who  arc  now,  or  hereafter  during  the  rebel- 
lion shall  be,  imprisoned  in  any  fort,  <fcc..  by  any  military  authority, 
or  by  the  sentence  of  any  court-martial  or  'military  commission. 

One  would  suppose  that  it  needed  no  argument  to  satisfy  an  intel- 
ligent and  patriotic  citizen  of  the  United  States  that,  by  the  ruling 
of  the  iSupreme  Court  cited,  so  much  of  this  proclamation  as  declares 
that  all  rebels  and  insurgents,  their  aiders  and  abettors,  shall  be  sub- 
ject to  martial  law  and  be  liable  to  trial  and  punishment  by  court- 
martial  or  military  commission,  needed  no  ratification  by  Congress. 
Every  step  that  the  President  took  against  rebels  and  insurgents  \vas 
taken  in  pursuance  of  the  rules  of  war  and  was  an  exercise  of  martial 
law.  Who  says  that  he  should  not  deprive  them,  by  the  authority  of 
this  law,  of  life  and  liberty?  Are  the  aiders  and  abettors  of  these  in- 
surgents entitled  to  any  higher  consideration  than  the  armed  insur- 
gents themselves?  It  is  against  these  that  the  President  proclaimed 
martial  law,  and  against  all  others  who  were  guilty  of  any  disloyal 
practice  affording  aid  and  comfort  to  rebels  against  the  authority  of 
the  United  States.  Against  these  he  suspended  the  privilege  of  the 
writ  of  habeas  corpus;  and  these,  and  only  such  as  these,  were  by 
that  proclamation  subjected  to  trial  and  punishment  by  court-martial 
or  military  commission. 

That  the  Proclamation  covers  the  offence  charged  here,  no  man  will, 
or  dare,  for  a  moment  deny.  Was  it  not  a  disloyal  practice  ?  Was 


43 

it  not  aiding  and  abetting  the  insurgents  and  rebels  to  enter  into  a 
conspiracy  with  them  to  kill  and  murder,  within  your  capital  and 
your  intrenched  camp,  the  Commander-in'-  Chief  of  our  army,  your 
Lieutenant  General,  and  the  Vice-President,  and  the  Secretary  of 
State,  with  intent  thereby  to  aid  the  rebellion,  and  subvert  the 
Constitution  and  laws  of  the  United  States?  But  it  is  said  that  the 
President  could  not  establish  a  court  for  their  trial,  and  therefore 
Congress  must  ratify  and  affirm  this  Proclamation.  I  have'said  be- 
fore that  such  an  argument  comes  with  ill  grace  from  the  lips  of  him 
who  declared  as  solemnly  that  neither  by  the  Congress  nor  by  the 
President  could  either  the  rebel  himself  or  his  aider  or  abettor  be 
lawfully  and  constitutionally  subjected  to  trial  by  any  military  tri- 
bunal, whether  court-martial  or  military  commission.  But  the  Con- 
gress did  ratify,  in  the  exercise  of  the  power  vested  in  them,  every 
part  of  this  Proclamation.  I  have  said,  upon  the  authority  of  the 
fathers  of  the  Constitution,  and  of  its  judicial  interpreters,  that 
Congress  has  power  by  legislation  to  aid  the  Executive  in  the  sup- 
pression of  rebellion,  in  executing  the  laws  of  the  Union  when  re- 
sisted by  armed  insurrection,  and  in  repelling  invasion. 

By  the  act  of  March  3,  1863,  the  Congress  of  the  United  States, 
by  the  first  section  thereof,  declared  that  during  the  present  rebellion 
the  President  of  the  United  States,  whenever  in  his  judgment  the 
public  safety  may  require  it,  is  authorized  to  suspend  the  writ  of 
habeas  corpus  in  any  case  throughout  the  United  States  or  any  part 
thereof.  By  the  fourth  section  of  the  same  act  it  is  declared  that 
anv  order  of  the  President,  or  under  his  authority,  made  at  any  time 
during  the  existence  of  the  present  rebellion,  shall  be  a  defence  in  all 
courts  to  any  action  or  prosecution,  civil  or  .criminal,  pending  or  to 
be  commenced,  for  any  search,  seizure,  arrest,  or  imprisonment,  made, 
done,  or  committed,  or  acts  omitted  to  "be  done,  under  and  by  virtue 
of  such  order.  By  the  fifth  section  it  is  provided,  that,  if  any  suit  or 
prosecution,  civil  or  criminal,  has  been  or  shall  be  commenced  in 
any  State  court  against  any  officer,  civil  or  military,  or  against  any 
other  person,  for  any  arrest  or  imprisonment  made,  or  other  trespasses 
or  wrongs  done  or  committed,  or  any  act  omitted  to  be  done  at  any 
time  during  the  present  rebellion,  by  virtue  of  or  under  color  of  any 
authority  derived  from  or  exercised  by  or  under  the  President  of  the 
United  States,  if  the  defendant  shall,  upon  appearance  in  such  court, 
file  a  petition  stating  the  facts  upon  affidavit,  &c. ,  as  aforesaid,  for  the 
removal  of  the  cause  for  trial  to  the  circuit  court  of  the  United  States, 
it  shall  be  the  duty  of  the  State  court,  upon  his  giving  security,  to 


44 

proceed  no  further  in  the  cause  or  prosecution.  Thus  declaring  that 
all  orders  of  the  President,  made  at  any  time  during  the  existence  of 
the  present  rebellion,  and  all  acts  done  in  pursuance  thereof,  shall  be 
held  valid  in  the  courts  of  justice.  Without  further  inquiry,  these 
provisions  of  this  statute  embrace  Order  141,  which  is  the  proclama- 
tion of  martial  law,  and  necessarily  legalize  every  act  done  under  it, 
either  before  the  passage  of  the  act  of  1863  or  since.  Inasmuch  as 
that  Proclamation  ordered  that  all  rebels,  insurgents,  their  aiders  and 
abettors,  and  persons  guilty  of  any  disloyal  practice  affording  aid 
and  comfort  to  rebels  against  the  authority  of  the  United  States,  at 
any  time  during  the  existing  insurrection,  should  be  subject  to  martial 
law,  and  liable  to  trial  and  punishment  by  a  military  commission,  the 
sections  of  .the  law  just  cited  declaring  lawful  all  acts  done  in  pursu- 
ance of  such  order,  including,  of  course,  the  trial  and  punishment  by 
military  commission  of  all  such  offenders,  as  directly  legalized  this 
order  of  the  President  as  it  is  possible  for  Congress  to  legalize  or  au- 
thorize any  executive  act  whatever.  (12  Stat.  at  Large,  755-' 6.) 

But  after  assuming  and  declaring  with  great  earnestness  in  his 
argument  that  no  person  could  be  tried  and  convicted  for  such  crimes 
by  any  military  tribunal,  whether  a  court-martial  or  a  military  com- 
mission, save  those  in  the  land  or  naval  servrce  in  time  of  war,  the 
gentleman  makes  the  extraordinary  statement  that  the  creation  of  a 
military  commission  must  be  authorized  by  the  legislative  department, 
and  demands,  if  there  be  any  such  legislation,  "let  the  statute  be 
produced."  .  The  statute  has  been  produced.  The  power  so  to  try, 
says  the  gentleman,  must  be  authorized  by  Congress,  when  the  de- 
mand is  made  for  such  authority.  Does  not  the  gentleman  thereby 
give  up  his  argument,  and  admit,  that  if  the  Congress  has  so  author-  % 
ized  the  trial  of  all  aiders  and  abettors  of  rebels  or  insurgents  for 
whatever  they  do  in  aid  of  such  rebels  and  insurgents  during  the  in- 
surrection, the  statute  and  proceedings  under  it  are  lawful  and 
valid  ?  I  have  already  shown  that  the  Congress  have  so  legislated 
by  expressly  legalizing  Order  No.  HI,  which  directed  the  trial  of  all 
rebels,  their  aiders  and  abettors,  by  military  commission.  Did  not 
Congress  expressly  legalize  this  order  by  declaring  that  the' order 
shall  be  a  defence  in  all  courts  to  any  action  or  prosecution,  civil  or 
criminal,  for  acts  done  in  pursuance  of  it?  No  amount  of  argument 
could  make  this  point  clearer  than  the  language  of  the  statute  itself. 
But,  says  the  gentleman,  if  there  be  a  statute  authorizing  trials  by 
military  commission,  "Let  it  be  produced." 

By  the  act  of  March  3,  1863,  it  is  provided  in  section  thirty  that 


45 

in  time  of  war,  insurrection,  or  rebellion,  murder  and  assault  with 
intent  to  kill,  &c.,when  committed  by  persons  in  the  military  service, 
shall  be  punishable  by  the  sentence  of  a  court-martial  or  military 
commission,  and  the  punishment  of  such  offences  shall  never  be  less 
than  those  inflicted  by  the  laws  of  the  State  or  District  in  which  they 
may  have  been  committed.  By  the  38th  section  of  the  same  act, 
it  is  provided  that  all  persons  who.  in  time  of  war  or  rebellion  against 
the  United  States,  shall  be  found  lurking  or  acting  as  spies  in  or 
about  the  camps,  &c.,  of  the  United  States,  or  elsewhere,  shall  be 
triable  by  a  military  commission,  and  shall,  upon  conviction,  suffer 
death.  Here  is  a  statute  which  expressly  declares  that  all  persons, 
whether  citizens  or  strangers,  who  in  time  of  rebellion  shall  be  found 
acting  as  spies,  shall  suffer  death  upon  conviction  by  a  military  com- 
mission. Why  did  not  the  gentleman  give  us  some  argument  upon 
this  law  ?  We  have  seen  that  it  was  the  existing  law  of  the  United 
States  under  the  Confederation.  Then,  and  since,  men  not  in.the  land 
or  naval  forces-  of  the  United  States  have  suffered  -death  for  this 
offence  upon  conviction  by  courts-martial.  If  it  was  competent  for 
Congress  to  authorize  their  trial  by  courts-martial,  it  was  equally 
competent  for  Congress  to  authorize  their  trial  by  military  commis- 
sion, and  accordingly  they  have  done  so.  By  the  same  authority  the 
Congress  may  extend  the  jurisdiction  of  military  commissions  over 
all  military  offences  or  crimes  committed  in  time  of  rebellion  or  war 
in  aid  of  the  public  enemy  ;  and  it  certainly  stands  with  right  reason, 
that  if  it  were  just  to  subject  to  death,  by  the  sentence  of  a  military 
commission,  all  persons  who  should  be  guilty  merely  of  lurking  as 
spies  in  the  interests  of  the  public  enemy  in  time  of  rebellion,  though 
they  obtained  no  information,  though  they  inflicted  no  personal 
injury,  but  were  simply  overtaken  and  detected  in  the  endeavor  to 
obtain  intelligence-  for  the  enemy,  those  who  enter  into  conspiracy 
with  the  enemy,  not  only  to  lurk  as  spies  in  your  camp,  but  to  lurk 
there  as  murderers  and  assassins,  and  who,  in  pursuance  of  that  con- 
spiracy, commit  assassination  and  murder  upon  the  Cornmander-in- 
Chief  of  your  army  within  your  camp  and  in  aid  of  rebellion,  should 
be  subject  in  like  manner  to  trial  by  military  commission.  (Stat.  at 
Large  12,  736-' 7,  ch.  8.) 

Accordingly,  the  President  having  so  declared,  the  Congress,  as  we 
have  stated,  have  affirmed  that  his  order  was  valid,  and  that  all  per- 
sons acting  by  authority,  and  consequently  as  a  court  pronouncing 
such  sentence  upon  the  offender  as  the  usage  of  war  requires,  are  jus- 
tified by  the  law  of  the  land.  With  all  respect,  permit  me  to  say 


46 

ttat  the  learned  gentleman  has  manifested  more  acumen  and  ability 
in  his  elaborate  argument  by  what  he  has  omitted  to  say  than  by  any- 
thin-  which  he  has  said.     By  the  act  of  July  2,  1864,  cap.  215,  it  is 
provided  that  the  commanding  general  in  the  field,  or  the  commander 
of  the  department,  as  the  case  may  be,  shall  have  power  to  carry  into 
execution  all  sentences  against  guerilla  marauders  for  robbery,  arson, 
burglary,  &c.,  and  for  violation  of  the  laws  and  customs  of  war,  as 
weU  as  sentences  against  spies,  mutineers,  deserters,  and  murderers. 
From  the  legislation  I  have  cited,  it  is  apparent  that  military  com- 
missions are  expressly  recognized  by  the   la\v-inaking  power  ;  that 
they  are  authorised  to  try  capital  offences  against  citizens  not  in  the 
service  of  the  United  States,  and  to  pronounce  the  sentence  of  death 
upon  them  ;  and  that  the  commander  of  a  department,  or  the  com- 
manding general  in  the  field,  may  carry  such  sentence  into  execution. 
But,  says  the  gentleman,   grant  all  this  to  be   so  ;    Congress  has  not 
declared  in  what  manner  the  court  shall  be  constituted.     The  answer 
to  that  objection  has  already  been  anticipated  in  the  citation  from 
Benet,  wherein  it  appeared  to  be  the  rule  of  the  law  martial  that  in 
the  punishment  of  all  military  offences  not  provided  for  by  the  written 
law  of  the  laud,  military  commissions  are  constituted  for  that  purpose 
by  the  authority  of  the  commanding  officer  or   the    Commander-in- 
Chief,  as  the  case  may  be,  who  selects  the  officers  of  a  court-martial  ; 
that  they  are  similarly  constituted,  and  their  proceedings  conducted 
according  to  the  same  general  rules.     That  is  a  part  of  the  very  law- 
martial  which  the  President  proclaimed,  and  which  the  Congress  has 
legalized.     The  Proclamation  has  declared  that  all  such   offenders 
shall  be  tried  by  military  commissions.      The  Congress  has  legalized 
the  same  by  the  act  which  I  have  cited  ;  arid  by  every  intendment  it 
must  be  taken  that,  as  martial  law  is  by  the  Proclamation  declared  to 
be  the  rule  by  which  they  shall  be  tried,  the  Congress,  in  affirming 
the  act  of  the  President,  simply  declared   that  they  should  be  tried 
according  to  the  customs  of  martial  law  ;  that  the  commission  should 
be  constituted  by  the  Commander-in- Chief  according  to  the  rule  of 
procedure   known  as  martial  law;   and  that  the   penalties    inflicted 
should  bo  in  accordance  with  the  laws  of  war  and  the  usages  of  na- 
tions.    Legislation  no  more  definite  than  this  has  been  upon  your 
statute-book  since  the  beginning  of  the  century,  and  has   been  held 
by  the  Supreme  Court  of  the  United  States  valid  for  the  punishment 
of  offenders. 

By  the  32d  article  of  the  act  of  23d  April,  1800,  it  is  provided  that 
"all  crimes  committed  by  persons  belonging  to  the  navy  which  are 
not  specified  in  the  foregoing  articles  shall  be  punished  according  to 


47 

the  laws  and  customs  in  such  cases  at  sea."  Of  this  article  the  Su- 
preme Court  of  the  United  States  say,  that  when  offences  and  crimes 
are  not  given  in  terms  or  by  definition  the  want  of  it  may  be  supplied 
by  a  comprehensi\re  enactment  such  as  the  32d  article  of  the  rules 
for  the  government  of  the  navy;  which  means  that  courts-martial 
have  jurisdiction  of  such  crimes  as  are  not  specified,  but  which  have 
been  recognized  to  begrimes  and  offences  by  the  usages  in  the  navies 
of  all  nations,  and  that  they  shall  be  punished  according  to  the  laws 
and  customs  of  the  sea.  (Dynes  vs.  Hoover,  20  Howard,  82.) 

But  it  is  a  fact  that  must  not  be  omitted  in  the  reply  which  I  make 
to  the  gentleman's  argument,  that  an  effort  was  made  by  himself  and 
others  in  the  Senate  of  the  United  States,  on  the  3d  of  March  last,  to 
condemn  the  arrests,  imprisonments,  &c.,  made  by  order  of  the- 
President  of  the  United  States  in  pursuance  of  his  proclamation,  and 
to  reverse,  by  the  judgment  of  that  body,  the  law  which  had  been 
before  passed  affirming  his  action,  which  effort  most  signally  failed. 

Thus  we  see  that  the  body  which  by  the  Constitution,  if  the 
President  had  been  guilty  of  the  misdemeanors  alleged  against  him  in 
this  argument  of  the  gentleman,  would,  upon  presentation  of  such 
charge  in  legal  form  against  the  President,  constitute  the  high  court 
of  impeachment  for  his  trial  and  condemnation,  has  decided  the  ques- 
tion in  advance,  and  declared  upon  the  occasion  referred  to,  as  they 
had  before  declared  by  solemn  enactment,  that  this  order  of  the 
President  declaring  martial  law  and  the  punishment  of  all  rebels  and 
insurgents,,  their  aiders  and  abettors,  by  military  commission,  should 
be  enforced  during  the  insurrection,  as  the  law  of  the  land,  and  that  the 
offenders  should  be  tried,  as  directed,  by  military  commission.  It  may 
be  said  that  this  subsequent  legislation  of  Congress,  ratifying  and 
affirming  what  had  been  done  by  the  President,  can  have  no  validity. 
Of  course  it  cannot  if  neither  the  Congress  nor  the  Executive  can 
authorize  the  proclamation  and  enforcement  of  martial  law  in  the 
suppression  of  rebellion  for  the  punishment  of  all  persons  committing 
military  offences  in  aid  of  that  rebellion.  Assuming,  however,  as  the 
gentleman  seemed  to  assume,  by  asking  for  the  legislation  of  Con- 
gress, that  there  is  such  power  in  Congress,  the  Supreme  Court  of 
the  United  States  has  solemnly  affirmed  that  such  ratification  is 
valid.  (2  Black,  671.) 

The  gentleman's  argument  is  full  of  citations  of  English  precedent. 
There  is  a  late  English  precedent  bearing  upon  this  point — the  power 
of  the  legislature,  by  subsequent  enactment,  to  legalize  executive 
orders,  arrests,  and  imprisonment  of  citizens — that  I  beg  leave  to 
commend  to  his  consideration.  I  refer  to  the  statute  of  11  and  12 


48 

Victoria,  ch.  35,  entitled  "An  act  to  empower  the  lord  lieutenant, 
or  other  chief  governor  or  governors  of  Ireland,  to  apprehend  and  de- 
tain until  the  first  day  of  March,  1849,  such  persons  as  he  or  they 
shall  suspect  of  conspiring  against  her  Majesty's  person  and, govern- 
ment "  passed  July  25,  1848,  which  statute  in  terms  declares  that 
all  and  every  person  and  persons  who  is,  are,  or  shall  be,  within  that 
period,  within  that  part  of  the  United  Kingdom  of  England  and  Ire- 
land called  Ireland  at  or  on  the  day  the  act  shall  receive  her  Majesty's 
roval  assent,  or  after,  by  warrant  for  high  treason  or  treasonable 
practices, or  suspicion  of  high  treason  or  treasonable  practices,  signed 
by  the  lord  lieutenant,  or  other  chief  governor  or  governors  of  Ire- 
laud  for  the  time  being, or  his  or  their  chief  secretary, for  such  causes 
as  aforesaid,  may  be  detained  in  safe  custody  without  bail  or  main 
prize,  until  the  first  day  of  March,  1849;  and  that  no  judge  or  justice 
shall  bail  or  try  any  such  person  or  persons  so  committed,  without 
order  from  her  Majesty's  privy  council,  until  the  said  first  day  of 
March,  1849,  any  law  or  statute  to  the  contrary  notwithstanding. 
The  2d  section  of  this  act  provides  that,  in  cases  where  any  persons 
have  been,  before  the  passing  of  the  act,  arrested,  committed,  or  de- 
tained for  such  cause  by  warrant  or  warrants  signed  by  the  officers 
aforesaid,  or  either  of  them,  it  may  be  lawful  for  the  person  or  per- 
sons to  \vhom  such  warrants  have  been  or  shall  be  directed,  to  detain 
such  person,  or  persons  in  his  or  their  custody  in  any  place  whatever 
in  Ireland;  and  that  such  person  or  persons  to  whom  such  warrants 
have  been  or  shall  be  directed  shall  be  deemed  and  taken,  to  all  in- 
tents and  purposes,  lawfully  authorized  to  take  into  safe  custody  and 
be  the  lawful  jailers  and  keepers  of  such  persons  so  arrested,  com- 
mitted, or  detained. 

Here  the  power  of  arrest  is  given  by  the  act  of  Parliament  to  the 
governor  or  his  secretary;  the  process  of  the  civil  courts  was  wholly 
suspended;  bail  was  denied  and  the  parties  imprisoned,  and  this  not 
by  process  of  the  courts,  but  by  warrant  of  a  chief  governor  or  his 
secretary;  not  for  crimes  charged  to  have  been  committed,  but  for  be- 
ing suspected  of  treasonable  practices.  Magna  charta  it  seems  op- 
poses no  restraint,  notwithstanding  the  parade  that  is  made  about  it 
in  this  argument,  upon  the  power  of  the  Parliament  of  England  to 
legalise  arrests  and  imprisonments  made  before  the  passage  of  the 
act  upon  an  executive  order.and  without  colorable  authority  of  statute 
law,  and  to  authorize  like  arrests  and  imprisonments  of  so  many  of 
six  million  of  people  as  such  executive  officers  might  suspect  of  trea- 
sonable practices. 


49 

But,  says  the  gentleman,  whatever  may  be  the  precedents,  English 
or  American,  whatever  may  be  the  provisions  of  the  Constitution, 
whatever  may  be  the  legislation  of  Congress,  whatever  may  be  the 
proclamations  and  orders  of  the  President  as  commander-in-chief,  it  is  a 
usurpation  and  a  tyranny  in  time  of  rebellion  and  civil  war  to  subject 
any  citizen  to  trial  for  any  crime  before  military  tribunals,  save  such 
citizens  as  are  in  the  land  or  naval  forces,  and  against  this  usurpa- 
tion, which  he  asks  this  court  to  rebuke  by  solemn  decision,  he  appeals 
to  public  opinion.  I  trust  that  I  set  as  high  value  upon  enlightened 
public  opinion  as  any  man.  I  recognize  it'  as  the  reserved  power  of 
the  people  which  creates  and  dissolves  armies,  which  creates  and 
dissolves  legislative  assemblies,  which  enacts  and  repeals  fundamental 
laws,  the  better  to  provide  for  personal  security  by  the  due  adminis- 
tration of  justice.  To  that  public  opinion  upon  this  very  question  of 
the  usurpation  of  authority,  of  unlawful  arrests,  and  unlawful  im- 
prisonments, and  unlawful  trials,  condemnations,  and  executions  t/y 
the  late  President  of  the  United  States,  an  appeal  has  already 
been  taken.  On  this  very  issue  the  President  was  -tried  before 
the  tribunal  of  the  people,  that  great. nation  of  freemen  who  cover 
this  continent,  looking  out  upon  Europe  from  their  eastern  and  upon 
Asia  from  their  western  homes.  That  people  came  to  the  consideration 
of  this  issue  not  unmindful  of  the  fact  that  the  first  struggle  for  the 
establishment  of  our  nationality  could  not  have  been,  and  was  not,  suc- 
cessfully prosecuted  without  the  proclamation  and  enforce/ment  of 
martial  law,  declaring,  as  we  have  seen,  that  any  inhabitant  who, 
during  that  war,  should  kill  any  loyal  citizen,  or  enter  into  any.  com- 
bination for  that  purpose,  should,  upon  trial  and  conviction  before  a 
military  tribunal,  be  sentenced  as  an  assassin,  traitor,  or  spy,  and 
should  suffer  death,  and  that  in  this  last  struggle  for  the  maintenance 
of  American  nationality  the  President  but  followed  the  example  of 
the  illustrious  Father  of  his  Country.  Upon  that  issue  the  people 
passed  judgment  on  the  8th  day  of  last  November,  and  declared  that 
the  charge  of  usurpation  was  false. 

From  this  decision  of  the  people  there  lies  no  appeal  on  this  earth. 
Who  can  rightfully  challenge  the  authority  of  the  American  people 
to  decide  such  questions  for  themselves?  The  voice  of  the  people, 
thus  solemnly  proclaimed,  by, the  omnipotence  of  the  ballot,  in  favor 
of  the  righteous  order  of  their  murdered  President,  issued  by  him 
for  the  common  defence,  for  the  preservation  of  the  Constitution,  and 
for  the  enforcement  of  the  laws  of  the  Union,  ought  to  be  accepted, 
and  will  be  accepted,  I  trust,  by  all  just  men,  as  the  voice  of  God.  j 

4B 


50 


MAT  IT  PLEASE  THE  COURT:  I  have  said  thus  much  touching  the  right 
of  the  people,  under  their  Constitution,  in  time  of  civil  war  and  re- 
bellion, to  proclaim  through  their  Executive,  with  the  sanction  and 
approval  of  their  Congress,  martial  law,  and  enforce  the  same  according 
to  the  usage  of  nations. 

I  submit  that  it  has  been  shown  that,  by  the  letter  and  spirit 
of  the  Constitution,  as  well  as  by  its  contemporaneous  construction, 
followed  and  approved  by  every  department  of  the  government,  this 
right  is  in  the  people  ;  that  it  is  inseparable  from  the  condition  of 
war,  whether  civil  or  foreign,  and  absolutely  essential  to  its  vigorous 
and  successful  prosecution  ;  that  according  to  the  highest  authority 
upon  constitutional  law,  the  proclamation  and  enforcement  of  martial 
law  are  "usual  tinder  all  governments  in  time  of  rebellion;"  that  our 
own  ]  ighest  judicial  tribunal  has  declared  this,  and  solemnly  ruled 
iuat  the  question  of  the  necessity  for  its  exercise  rests  exclusively 
with  Congress  and  the  President  ;  and  that  the  decision  of  the  politi- 
cal departments  of  the  government,  that  there  is  an  armed  rebellion 
and  a  necessity  for  the  employment  of  military  force  and  martial  law 
in  its  suppression,  concludes  the  judiciary. 

In  submitting  what  I  have  said  in  support  of  the  jurisdiction  of  this 
honorable  court,  and  of  its  constitutional  power  to  hear  and  determine 
this  issue,  I  have  uttered  my  own  convictions ;  and  for  their  utter- 
ance in  defence  of  my  country,  and  its  right  to  employ  all  the  means 
necessary  for  the  common  defence  against  armed  rebellion  and  secret 
treasonable  conspiracy  in  aid  of  such  rebellion,  I  shall  neither  ask 
pardon  nor  offer  apology.  I  find  no  words  with  which  more  fitly  to 
conclude  all  I  have  to  say  upon  the  question  of  the  jurisdiction  and 
constitutional  authority  of  this  court  than  those  employed  by  the 
illustrious  Lord  Brougham  to  the  House  of  Peers  in  support  of  the 
bill  before  referred  to,  which  empowered  the  lord  lieutenant  of 
Ireland,  and  his  deputies,  to  apprehend  and  detain,  for  the  period  of 
seven  months  or  more,  all  such  persons  within  that  island  as  they 
shpuld  suspect  of  conspiracy  against  her  Majesty's  person  and  govern- 
ment. Said  that  illustrious  man  :  "A  friend  of  liberty  I  have  lived, 
and  such  will  I  die  ;  nor  care  I  how  soon  the  latter  event  may 
happen,  if  I  cannot  be  a  friend  of  liberty  without  being  a  friend  of 
traitors  at  the  same  time— a  protector  of  criminals  of  the  deepest 
dye— an  accomplice  of  foul  rebellion  and  of  its  concomitant,  civil 
war,  with  all  its  atrocities  and  all  its  fearful  consequences."  (Han- 
sard's Debates,  3d  series,  vol.  100,  p.  635.) 


51 


MAY  IT  PLEASE  THE  COURT  :  It  only  remains  for  me  to  sum  up  the 
evidence,  and  present  my  views  of  the  law  arising  upon  the  facts  in 
the  case  on  trial.  The  questions  of  fact  involved  in  the  issue  are  : 

First,  did  the  accused,  or  any  two  of  them,  confederate  and  con- 
spire together  as  charged  ?  and — 

Second,  did  the  accused,  or  any  of  them,  in  pursuance  of  such  con- 
spiracy, and  with  the  intent  alleged,  commit  either  or  all  of  the  sev- 
eral acts  specified  ? 

If  the  conspiracy  be  established,  as  laid,  it  results  that  whatever  was 
said  or  done  by  either  of  the  parties  thereto,  in  the  furtherance  or  exe- 
cution of  the  common  design,  is  the  declaration  or  act  of  all  the  other 
parties  to  the  conspiracy;  and  this,  whether  the  other  parties,  at  the 
time  such  words  were  uttered  or  such  acts  done  by  their  confederates, 
were  present  or  absent — here,  within  the  intrenched  lines  of  your 
capital,  or  crouching  behind  the  intrenched  lines  of  Richmond,  or 
awaiting  the  results  of  their  murderous  plot  against  their  country,  its 
Constitution  arid  laws,  across  the  border,  under  the  shelter  of  the 
British  flag. 

The  declared  and  accepted  rule  of  law  in  case,s  of  conspiracy  is 
that— 

"In  prosecutions  for  conspiracy  it  is  an  established  rule  that 
where  several  persons  are  proved  to  have  combined  together  for  the 
same  illegal  purpose,  any  act  done  by  one  of  the  party,  in  pursuance 
of  the  original  concerted  plan,  and  in  reference  to  the  common  object, 
is,  in  the  contemplation  of  law  as  well  as  in  sound  reason,  the  act  of 
the  whole  party;  and,  therefore,  the  proof  of  the  act  will  be  evidence 
against  any  of  the  others,  who  were  engaged  in  the  same  general 
conspiracy,  without  regard  to  the  question  whether  the  prisoner  is 
proved  to  have  been  concerned  in  the  particular  transaction." 
(Phillips  on  Evidence,  p.  210.) 

The  same  rule  obtains  in  cases  of  treason:  "If  several  persons 
agree  to  levy  war,  some  in  one  place  and  some  in  another,  and  one 
party  do  actually  appear  in  arms,  this  is  a  levying  of  war  by  all, 
as  well  those  who  were  not  in  arms  as  those  who  were,  if  it  were 
done  in  pursuance  of  the  original  concert,  for  those  who  made  the 
attempt  were  emboldened  by  the  confidence  inspired  by  the  general 
concert,  and  therefore  these  particular  acts  are  in  justice  imputable 
to  all  the  rest."  (I  East.,  Pleas  of  the  Crown,  p.  97;  Roscoe,  84.) 

In  Ex  parte  Bollman  and  Swartwout,  4  Cranch,  126,  Marshall,  Chief 
Justice,  rules:  "If  war  be  actually  levied — that  is,  if  a  body  of  men  be 


52 

actually  assembled,  for  the  purpose  of  effecting,  by  force,  a  treasonable 
purpose,  all  those  who  perform  any  part,  however  minute,  or  hoivever 
remote  from  the  scene  of  action,  and  who  are  actually  leagued  in  the 
general  conspiracy,  are  to  be  considered  as  traitors." 

In  United  States  vs.  Cole  et  al,  5  McLean,  601,  Mr.  Justice  McLean 
says:  "A  conspiracy  is  rarely,  if  ever,  proved  by  positive  testimony. 
When  a  crime  of  high  magnitude  is  about  to  be  perpetrated  by  a 
combination  of  individuals,  they  do  not  act  openly  but  covertly  and  se- 
cretly. The  purpose  formed  is  known  only  to  those  who  enter  into 
it.  Unless  one  of  the  original  conspirators  betray  his  companions 
and  give  evidence  against  them,  their  guilt  can  be  proved  only  by  cir- 
cumstantial evidence.  *  *  It  is  said  by  some  writers  on  evidence 
that  such  circumstances  are  stronger  than  positive  proof.  A  witness 
swearing  positively,  it  is  said,  may  misapprehend  the  facts  or  swear 
falsely,  but  that  circumstances  cannot  lie. 

"The  common  design  is  the  essence  of  the  charge  ;  and  this  may 
be  made  to  appear  when  the  defendants  steadily  pursue  the  same 
object,  whether  acting  separately  or  together,  by  common  or  differ- 
ent means,  all  leading  to  the  same  unlawful  result.  And  where 
prima  facie  evidence  has  been  given  of  a  combination,  the  acts  or  con- 
fessions of  one  are  evidence  against  all.  *  *  It  is  reasonable  that 
where  a  body  of  men  assume  the  attribute  of  individuality,  whethei 
for  commercial  business  or  for  the  commission  of  a  crime,  that  the 
association  should  be  bound  by  the  acts  of  one  of  its  members,  in 
carrying  out  the  design." 

It  is  a  rule  of  the  lasv,  not  to  be  overlooked  in  this  connexion,  that 
the  conspiracy  or  agreement  of  the  parties,  or  some  of  them,  to  act 
in  concert  to  accomplish  the  unlawful  act  charged,  may  be  established 
either  by  direct  evidence  of  a  meeting  or  consultation  for  the  illegal 
purpose  charged,  or  more  usually,-  from  the  very  nature  of  the  case, 
by  circumstantial  evidence.  (2  Starkie,  232.) 

Lord  Mansfield  ruled  that  it  was  not  necessary  to  prove  the  actual 
fact  of  a  conspiracy,  but  that  it  might  be  collected  from  collateral 
circumstances.  (Parson's  Case,  1  W.  Bkckstone,  392.) 

"If,"  says  a  great  authority  on  the  law  of  evidence,  "  on  a  charge 
of  conspiracy,  it  appear  that  two  persons  by  their  acts  are  pursuing 
the  same  object,  and  often  by  the  same  means,  or  one  performing 
part  of  the  act,  and  the  other  completing  it,  for  the  attainment  of  the 
same  object,  the  jury  may  draw  the  conclusion  there  is  a  conspiracy. 
If  a  conspiracy  be  formed,  and  a  person  join  in  it  afterwards,  he  is 
equally  guilty  with  the  original  conspirators."  (Roscoe,  415.) 


53 

• 

"The  rule  of  the  admissibility  of  the  acts  and  declarations  of  any  one 
of  the  conspirators,  said  or  done  in  furtherance  of  the  common  de- 
sign, applies  in  cases  as  well  where  only  part  of  the  conspirators  are 
indicted,  or  upon  trial,  as  where  all  are  indicted  and  upon  trial. 
Thus,  upon  an  indictment  for  murder,  if  it  appear  that  others,  together 
with  the  prisoner,  conspired  to  commit  the  crime,  the  act  of  one, 
done  in  pursuance  of  that  intention,  will  be  evidence  against  the 
rest."  (2d  Starkie,  237.) 

They  are  all  alike  guilty  as  principals.  (Commonwealth  vs.  Knapp, 
9  Pickering,  496.;  10  Pickering,  477;  6  Term  Reports,  528;  11  East., 
584.) 

What  is  the  evidence,  direct  and  circumstantial,  that  the  accused, 
or  either  of  them,  together  with  John  H.  Surratt,  John  "Wilkes  Booth, 
Jefferson  Davis,  George  N.  Sanders,  Beverley  Tucker,  Jacob  Thomp- 
son, William  C.  Cleary,  Clement  C.  Clay,  George  Harper,  and 
.George  Young,  did  Combine,  confederate,  and -conspire,  in  aid  of  the 
existing  rebellion,  as  charged,  to  kill  and  murder,  within  the  military 
department  of  Washington,  and  within  the  fortified  and  intrenched 
lines  thereof,  Abraham  Lincoln,  late,  and,  at  the  time  of  the- said 
combining,  confederating,  and  conspiring,  President  of1  the  United 
States  of  America  and  commander-in-chief  of  the  army  and  navy 
thereof;  Andrew  Johnson,  Vice  President  of  the  United  States; 
William  H.  Seward,  Secretary  of  State  of 'the  United  States;  and 
Ulysses  S.  Grant,  lieutenant  general  of  the  armies  thereof,  and  then 
in  command,  under  the  direction  of  the  President? 

The  time,  as  laid  in  the  charge  and  specification^  when  this  con- 
spiracy was  entered  into,  is  immaterial,  so  that  it  appear  by  the  evi- 
.dence  that  the  criminal  combination  and  agreement  were  formed  be- 
fore the  commission  of  the  acts  alleged.  That  Jefferson  'Davis,  one 
of  the  conspirators  named,  was  the  acknowledged  chief  and  leader  of 
the  existing  rebellion  against  the  government  of  the  United  States, 
and  that  Jacob  Thompson,  George  N.  Sanders,  Clement  C.  Clay, 
Beverley  Tucker,  and  others  named  in  the  specification,  were  his  duly 
accredited  and  authorized  agents  to  act  in  the  interests  of  said  rebel- 
lion, are  facts  established  by  the  testimony  in  this  case  beyond  all 
question.  That  Davis,  as  the  leader  of  said  rebellion,  gave  to  those 
agents,  then  in  Canada,  commissions  in  blank,  bearing  the  official 
signature  of  his  war  minister,  James  A.  Seddon,  to  be  by  them  filled 
up  and  delivered  to  such  agents  as  they  might  employ  to  act  in  the 
interests  of  the  rebellion  within  the  United  States,  and  intended  to 
be  a  cover  and  protection  for  any  crimes  they  might  therein  commit 


54 

in  the  service  of  the  rebellion,  is  also  a  fact  established  here,  and 
which  no  man  can  gainsay.  Who  doubts  that  Kennedy,  whose 
confession,  made  in  view  of  immediate  death,  as  proved  here, 
was  commissioned  by  those  accredited  agents  of  Davis  to  burn 
the  city  of  New  York? — that  he  was  to  have  attempted  it  on 
the  night  of  the  presidential  election,  and  that  he  did,  in  com- 
bination with  his  confederates,  set  fire  to  four  hotels  in  the 
city  of  New  York  on  the  night  of  the  25th  of  November  last? 
Who  doubts  "that,  in  like  manner,  in  the  interests  of  the  rebellion 
and  bv  the  authority  of  Davis,  these  his  agents  also  commissioned 
Bennett  H.  Young  to  commit  arson,  robbery,  and  the  murder  of  un- 
armed citizens,  in  St.  Albans,  Vermont?  Who  doubts,  upon  the 
testimony  shown,  that  Davis,  by  his  agents,  deliberately  adopted  the 
system  of  starvation  for  the  murder  of  our  captive  soldiers  in  his 
hands ;  or  that,  as  shown  by  the  testimony,  he  sanctioned  the  burn- 
ing of  hospitals  and  steamboats,  the  property  of  private  persons, 
and  paid  therefor  from  his  stolen  treasure  the  sum  of  thirty-five 
thousand  dollars  in  gold?  By  the  evidence  of  Joseph  Godfrey  Hyams 
it  is  proved  that  Thompson — the  agent  of  Jefferson  Davis — paid  him 
money  for  the  service  he  rendered  in  the  infamous  and  fiendish  pro- 
ject of  importing  pestilence  into  our  camps  and  cities  to  destroy  the 
lives  of  citizens  and  soldiers  alike,  and  into  the  house  of  the  Presi- 
dent for  the  purpose  of  destroying  his  life.  It  may  be  said,  and 
doubtless  will  be  said,  by  the  pensioned  advocates  of  this  rebellion, 
that  Hyams,  being  infamous,  is  not  to  be  believed.  It  is  admitted 
that  ho  is  infamous,  as  it  must  be  conceded  that  any  man  is  infamous 
who  either  participates  in  such  a  crime  or  attempts  in  anywise  to 
extenuate  it.  But  it  will  be  observed  that  Hyams  is  supported  by. 
the  testimony  of  Mr.  Sanford  Conover,  who  heard  Blackburn  and  the 
other  rebel  agents  in  Canada  speak  of  this  infernal  project,  and  by 
the  testimony  of  Mr.  Wall,  the  well-known  auctioneer  of  this  city, 
whose  character  is  unquestioned,  that  he  received  this  importation  of 
pestilence,  (of  course  without  any  knowledge  of  the  purpose,)  and 
that  Hyams  consigned  the  goods  to  him  in  the  name  of  J.  W.  Harris — 
a  fact  in  itself  an  acknowledgment  of  guilt  ;  and  that  he  received 
afterwards  a  letter  from  Harris,  dated  Toronto,  Canada  West,  Decem- 
ber 1,  1864,  wherein  Harris  stated  that  he  had  not  been  able  to 
come  to  the  States  since  his  return  to  Canada,  and  asked  for  an 
account  of  the  sale.  He  identifies  the  Godfrey  Joseph  Hyams 
who  testified  in  court  as  the  J.  W.  Harris  who  imported  the  pes- 
tilence. The  very  transaction  shows  that  Hyams' s  statement  is 


55 

truthful.     He  gives  the  names  of  the  parties  connected  with  this 
infamy,  (Clement  C.  Clay,   Dr.  Blackburn,  Rev.   Dr.  Stuart  Robin- 
son, J.  C.  Holcombe — all  refugees  from  the  confederacy  in  Canada,) 
and  states  that  he  gave  Thompson  a  receipt  for  the  fifty  dollars  paid 
to  him,  and  that  he  was  by  occupation  a  shoemaker  ;  in  none  of  which 
facts  is  there  an  attempt  to  discredit  him.     It  is  not  probable  that  a 
man  in  his  position  in  life  would  be  able  to  buy  five  trunks  of  cloth- 
ing, ship  them  'all  the  way  from  Halifax  to  Washington,   and  then 
order  them  to  be  sold  at  auction,  without  regard  to  price,  solely  upon 
his  own  account.     It  is  a  matter  of  notoriety  that  a  part  of  his  state- 
ment is  verified   by  the   results   at  Newbern,    North    Carolina,  to 
which  point,  he  says,  a  portion  of  the  infected  goods  were  shipped, 
through  a  sutler  ;  the  result  of  which  was,  that  nearly  two  thousand 
citizens  and  soldiers  died  there  about  that  time  with  the  yellow  fever. 
That  the  rebel  chief,   Jefferson  Davis,  san-ctioned  these  crimes, 
committed  and  attempted  through  the  instrumentality  of  his  accred- 
ited agents  in  Canada — Thompson,   Clay,  Tucker,  Sanders,   CleaVy, 
&c. — upon  the  persons  and  property  of  the  people  of  the  north,  there 
is  positive  proof  on  your  record.     The  letter  brought  from  Richmond, 
and  taken  from  the  archives  of  his  late  pretended  government  there, 
dated  February  11,  1865,  and  addressed  to  him  by  a  late  rebel  sena- 
tor from  Texas,  W.  S.   Oldham,   contains  the  following  significant 
words  :   "When  senator  Johnson,  of  Missouri,  and  myself  waited  on 
you  a  few  days  since,  in  relation  to  the  project  of  annoying  and  har- 
assing the  enemy  by  means  of  burning  their  shipping,  towns,  &c., 
<fcc.,   there  were  several  remarks  made  by  you  upon  the  subject, 
which  I  was  not  fully  prepared  to  answer,  but  which,  upon  sub- 
sequent conference    with  parties   proposing  the    enterprise,   I  find 
cannot  apply  as  objections  to  the  scheme.     First,   the    'combusti- 
ble materials'   consist  of  several   preparations,   and  not  one  alone, 
and  can   be  used  without  exposing  the  party  using  them  to   the 
least  danger  of  detection  whatever.     *     *     *     Second,  there  is  no 
necessity  for  sending  persons  in  the  military  service  into  the  enemy's 
country,  but  the  work  may  be  done  by  agents.     *     *     *     I  have 
seen  enough  of  the  effects  that  can  be  produced  to  satisfy  me  that 
in  most  cases,  without  any  danger  to  the  parties  engaged,  and  in 
others  but  very  slight,  we  can,  first,  burn  every  vessel  that  leaves  a 
foreign  port  for  the  United  States  ;  second,  we  can  burri  every  trans- 
port that  leaves  the  harbor  of  New  York,  or  other  northern  port, 
with   supplies  for  the   armies  of  the  enemy  in  the   south  ;    third, 
burn  every  transport  and  gunboat  on  the  Mississippi  river,  as  well 


56 

as  devastate  the  country  of  the  enemy,  and  fill  his  people  with  ter-i 
ror  and  consternation.  *  *  *  For  the  purpose  of  satisfying  your 
mind  upon  the  subject,  I  respectfully,  but  earnestly,  request  that  you 
will  give  an  interview  with  General  Harris,  formerly  a  member  of 
Congress  from  Missouri,  who,  I  think,  is  able,  from  conclusive  proofs, 
to  convince  you  that  what  I  have  suggested  is  perfectly  feasible  and 

practicable." 

No  one  can  doubt,  from  the  tenor  of  this  letter,  that  the  rebol  Davis 
only  wanted  to  be  satisfied  that  this  system  of  arson  and  murder 
could  be  carried  on  by  his  agents  in  the  north  successfully  and  with- 
out detection.  With  him  it  was  not  a  crime  to  do  these  acts,  but 
only  a  crime  to  be. detected  in  them.  But  Davis,  by  his  indorsement 
on  this  letter,  dated  the  20th  of  February,  18G5.  bears  witness  to 
his  own  complicity  and  his  own  infamy  in  this  proposed  work  of  de- 
struction and  crime  for  the  future,  as  well  as  to  his  complicity  in 
what  had  before  been  attempted  without  complete  success.  Ken- 
nedy, with  his  conlederates,  had  failed  to  burn  the  city  of  New  York. 
"The  combustibles"  which  Kennedy  had  employed  were,  it  seems, 
defective.  This  was  "a  difficulty  to  be  overcome."  Neither  had 
he  been  able  to  consummate  the  dreadful  work  without  subjecting 
himself  to  detection.  This  was  another  "difficulty  to  be  overcome." 
Davis,  on  the  20tli  of  February,  18G5,  indorsed  upon  this  letter  these 
words  :  "Secretary  of  State,  at  his  convenience,  see  General  Harris 
and  learn  what  plan  he  has  for  overcoming  the  difficulties  heretofore  ex- 
perienced. J.  U." 

This  indorsement  is  unquestionably  proved  to  be  the  handwriting 
of  Jefferson  Davis,  and  it  bears  witness  on  its  face  that  the  monstrous 
proposition  met  his  approval,  and  that  he  desired  his  rebel  Secretary 
of  State,  Benjamin,  to  see  General  Harris  and  learn  how  to  over- 
come the  d'jfivulty  heretofore  experienced,  to  wit :  the  inefficiency  of 
"the  combustible  materials"  that  had  been  employed,  and  the  lia- 
bility of  his  agents  to  detection.  After  this,  who  will  doubt  that  he 
had  endeavored,  by  the  hand  of  incendiaries,  to  destroy  by  fire  the 
property  and  lives  of  the  people  of  the  north,  and  thereby  "fill  them 
with  terror  and  consternation;"  that  he  knew  his  agents  had  been 
unsuccessful  ;  that  he  knew  his  agents  had  been  detected  in  their 
villany  and  punished  for  their  crime  ;  that  he  desired  through  a  more 
perfect  "chemical  preparation,"  by  the  science  and  skill  of  Professor 
McCulloch,  to  accomplish  successfully  what  had  before  been  unsuc- 
cessfully attempted? 

The  intercepted  letter  of  his  agent,  Clement  C.  Clay,  dated  St. 


57 

Catherine's,  Canada  "West,  November  1,  1864,  is  an  acknowledgment 
and  confession  of  what  they  had  attempted,  and  a  suggestion  made 
through  J.  P.  Benjamin,  rebel  Secretary  of  State,  of  what  remained 
to  be  done,  in  order  to  make  the  "chemical  preparations"  efficient. 
Speaking  of  this  Bennett  II.  Young,  he  says  :  "You  have  doubtless 
learned  through  the  press  of  the  United  States  of  the  raid  on  St;  Albans 
by  about  twenty-five  confederate  soldiers,  led  by  Lieutenant  Bennett  H. 
Young;  of  their  attempt  and  failure  to  burn  the  town;  of  their  robbery 
of  three  banks  there  of  the  aggregate  amount  of  about  two  hundred 
thousand  dollars  ;  of  their  arrest  in  Canada,  by  United  States  forces  ;  of 
their  commitment  and  the  pending  preliminary  trial."  He  makes  ap- 
plication, in  aid  of  Young  and  his  associates,  for  additional  documents, 
showing  that  they  acted  upon  the  authority  of  the  Confederate  States 
government,  taking  care  to  say,  however,  that  he  held  such  authority  at 
the  time,  but  that  it  ought  to  be  more  explicit,  so  far  as  regards  the  par- 
ticular acts  complained  of.  He  states  that  he  met  Young  at  Halifax  in 
May,  18G4,  who  developed  his  plans  for  retaliation  on  the  enemy;  that 
he,  Clay,  recommended  him  to  the  rebel  Secretary  of  War;  that  aftef 
this  "Young  was  sent  back  by  the  Secretary  of  War  with  a  commission 
as  second  lieutenant  to  execute  his  plans  and  purposes,  but  to  report  to 

Hon.  and  myself,"     Young  afterwards  "proposed  passing 

through  New  England,  burning  some  towns  and  robbing-  them  of 
whatever  he  could  convert  to  the  use  of  the  confederate  government. 
This  I  approved  as  justifiable  retaliation.  He  attempted  to  burn  the 
town  of  St.  Albans,  Vermont,  and  would  have  succeeded  but  for  the  fail- 
ure of  the  chemical  preparation  with  which  he  was  armed.  He  then 
robbed  the  banks  of  funds  amounting  to  over  two  hundred  thousand 
dollars.  That  he  was  not  prompted  by  selfish  or  mercenary  motives 
I  am  as  well  satisfied  as  I  am  that  he  is  an  honest  man.  He  assured 
me  before  going  that  his  effort  would  be  to  destroy  towns  and  farm- 
houses, but  not  to  plunder  or  rob;  but  he  said  if,  after  firing  a  town, 
he  saw  he  could  take  funds  from  a  bank  or  any  house,  and  thereby 
might  inflict  injury  upon  the  enemy  and  benefit  his  own  government, 
he  would  do  so.  He  added  most  emphatically,  that  w/iatever  he  took 
should  be  turned  over  to  the  government  or  its  representatives  in  for- 
eign lands.  My  instructions  to  him  were,  to  destroy  whatever  was 
valuable;  not  to  stop  to  rob,  but  if,  after  firing  a  town,  he  could  seize 
and  carry  off  money  or  treasury  or  bank  notes,  he  might  do  so  upon 
condition  that  they  were  delivered  to  the  proper  authorities  of  the 
Confederate  States" — that  is,  to  Clay  himself. 
When  he  wrote  this  letter  it  seems  that  this  accredited  agent  of 


Jefferson  Davis  was  as  strongly  impressed  with  the  usurpation  and 
despotism  of  Mr.  Lincoln's  administration  as  some  of  the  advocates  of 
his  aiders  and  abettors  seem  to  be  at  this  day  ;  and  he  indulges  in  the 
following  statement  :  4 '  All  that  a  large  portion  of  the  northern  people, 
especially  in  the  northwest,  want  to  resist  the  oppressions  of  the  des- 
potism at  Washington  is  a  leader.     They  are  ripe  for  resistance,  and 
it  may  come  soon  after  the  presidential  election.     At  all  events,  it  must 
come,  if  our  armies  are  not  overcom'e,   or  destroyed,    or  dispersed. 
No  people  of  the  Anglo-Saxon  blood  can  long  endure  the  usurpations 
and  tyrannies  of  Lincoln."     Clay  does  not  sign  the  despatch,  but 
indorses  the  bearer  of  it  as  a  person  who  can   identify  him  and  give 
his  name.     The  bearer  of  that  letter  was  the  witness  Richard  Mont- 
gomery, who  saw  Clay  write  a  portion  of  the  letter,  and  received  it 
from  his  hands,  and  subsequently  delivered  it  to  the  Assistant  Secre- 
tary of  War  of  the  United  States,  Mr.  Dana.     That  the  letter  is  in 
Clay's  handwriting  is  clearly  proved  by  those  familiar  with  it.     Mr. 
Montgomery  testifies  that  he  was  instructed  by  Clay  to  deliver  this 
letter   to  Benjamin,  the  rebel  Secretary  of  State,    if  he  could  get 
through  to  Richmond,  and  to  tell  him  what  names  to  put  in  the 
blanks. 

This  letter  leaves  no  doubt,  if  any  before  existed  in  the  mind  of 
any  one  who  had  read  the  letter  of  Oldham  and  Davis' s  indorsement 
thereon,  that  "  the  chemical  preparations"  and  "  combustible  mate- 
rials" had  been  tried  and  had  failed,  and  it  had  become  a  mutter  of 
great  moment  and  concern  that  they  should  be  so  prepared  as,  in  the 
words  of  Davis,  "  to  overcome  the  difficulties  heretofore  experi- 
enced ;"  that  is  to  say,  complete  the  work  of  destruction,  and  secure 
the  perpetrators  against  personal  injury  or  detection  in  the  perform- 
ance of  it. 

It  only  remains  to  be  seen  whether  Davis,  the  procurer  of  arson 
and  of  the  indiscriminate  murder  of  the  innocent  and  unoffending 
necessarily  resultant  therefrom,  was  capable  also  of  endeavoring  to 
procure,  and  in  fact  did  procure,  the  murder,  by  direct  assassination, 
of  the  President  of  the  United  States  and  others  charged  with  the  duty 
of  maintaining  the  government  of  the  United  States,  and  of  suppressing 
the  rebellion  in  which  this  arch-traitor  and  conspirator  was  engaged. 
The  official  papers  of  Davis,  captured  under  the  guns  of  our  victo- 
rious army  in  his  rebel  capital,  identified  beyond  question  or  shadow 
of  doubt,  and  placed  upon  your  record,  together  with  the  declara- 
tions and  acts  of  his  co-conspirators  and  agents,  proclaim  to  all  the 
world  that  he  was  capable  of  attempting  to  accomplish  his  treasonable 


59 

procuration  of  the  murder  of  the  late  President,  and  other  chief  of- 
ficers of  the  United  States,  by  the  hands  of  hired  assassins. 

In  the  fall  of  1864  Lieutenant  W.  Alston  addresses  to  "his  excel- 
lency" a  letter  now. before  the  court,  which  contains  the  following 
words  : 

' '  I  now  offer  you  my  services,  and  if  you  will  favor  me  in  my  designs, 
I  will  proceed,  as  soon  as  my  health  will  permit,  to  rid  my  country  of 
some  of  her  deadliest  enemies,  by  striking  at  the  very  hearts'  blood  of 
those  who  seek  to  enchain  her  in  slavery.  I  consider  nothing  dishon- 
orable having  such  a  tendency.  All  I  ask  of  you  is,  to  favor  me  by 
granting  me  the  necessary  papers.  &c.,  to  travel  on.  *  *  *  * 
lam  perfectly  familiar  with  the  north,  and  feel  confident  that  I  can 
execute  anything  I  undertake.  I  was  in  the  raid  last  June  in  Ken- 
tucky, under  General  John  H.  Morgan;  '  *  *  *  was  taken  pris- 
oner; *  *  *  escaped  from  them  by  dressing  myself  in  the  ga'rb 
of  a  citizen.  *  *  *  I  went  through  to  the  Canadas,  from  whence, 
by  the  assistance  of  Colonel  J.  P.  Holcomb,  I  succeeded  in  working  my 
way  around  and  through  the  blockade.  *  *  *  I  should  like  to 
have  &  personal  interview  with  you  in  order  to  perfect  the  arrange- 
ments before  starting." 

Is  there  any  room  to  doubt  that  this  was  a  proposition  to  assas- 
sinate, by  the  hand  of  this  man  and  his  associates,  such  persons  in  the 
north  as  he  deemed  the  "deadliest  enemies"  of  the  rebellion?  The, 
weakness  of  the  man  who  for  a  moment  can  doubt  that  such  was  the 
proposition  of  the  writer  of  this  letter  is  certainly  an  object  of  com- 
miseration. What  had  Jefferson  Davis  to  say  to  this  proposed  assas- 
sination of  the  "  deadliest  enemies"  in  the  north  of  his  great  treason  ? 
Did  the  atrocious  suggestion  kindle  in  him  indignation  against  the 
villain  who  offered,  with  his  own  hand,  to  strike  the  blow  ?  Not 
at  all.  On  the  contrary,  he  ordered  his  private  secretary,  on  the 
29th  of  November,  1864,  to  indorse  upon  the  letter  these  words: 
"Lieutenant  W.  Alston;  accompanied  raid  into  Kentucky,  and  was  cap- 
tured, but  escaped  into  Canada,  from  whence  he  found  his  way  back. 
Now  offers  his  services  to  rid  the  country  of  some  of  its  deadliest  ene- 
mies; asks  for  papers,  &c.  Respectfully  referred,  by  direction  of  the 
President,  to  the  honorable  Secretary  of  War."  It  is  also  indorsed, 
for  attention,  "By  order.  (Signed)  J.  A.Campbell,  Assistant  Secre- 
tary of  War." 

Note  the  fact  in  this  connexion,  that  Jefferson  Davis  himself,  as 
well  as  his  subordinates,  had,  before  the  date  of  this  indorsement, 
concluded  that  Abraham  Lincoln  was  "the  deadliest  enemy"  of  the 


60 

rebellion.  You  hear  it  in  the  rebel  camp  in  Virginia  in  1863,  declared 
by  Booth,  then  and  there  present,  and  assented  to  by  rebel  officers, 
that  "Abraham  Lincoln  must  be  killed."  You  hear  it  in  that 
slaughter- pen  in  Georgia,  Andersonville,  proclaimed  among  rebel 
officers,  who,  by  the  slow  torture  of  starvation,  inflicted  cruel  and 
untimely  death  on  ten  thousand  of  your  defenders,  captives  in  their 
hands— whispering,  like  demons,  their  horrid  purpose,  "Abraham 
Lincoln  must  be  killed."  And  in  Canada,  the  accredited  agents  of 
Jefferson  Davis,  as  early  as  October,  1864,  and  afterwards,  declared 
that  "  Abraham  Lincoln  must  be  killed"  if  his  re-election  could  not 
be  prevented.  These  agents  in  Canada,  on  the  13th  of  October, 
1864,  delivered,  in  cipher,  to  be  transmitted  to  Richmond  by  Richard 
Montgomery,  the  witness,  whose  reputation  is  unchallenged,  the  fol- 
lowing communication  : 

"OCTOBER   13,    1864. 

"We  again  urge  the  immense  necessity  of  our  gaining  immediate 
advantages.  Strain  every  nerve  for  victory.  We  now  look  upon 
the  re-election  of  Lincoln  in  November  as  almost  certain,  and  we 
need  to  whip  his  hirelings  to  prevent  it.  Besides,  with  Lincoln  re- 
elected,  and  his  armies  victorious,  we  need  not  hope  even  for  recog- 
nition, much  less  the  help  mentioned  in  our  last.  Holcomb  will  ex- 
plain this.  Those  figures  of  the  Yankee  armies  are  correct  to  a 
unit.  Our f fiends  shall  be  immediately  set  to  tvork  as  you  direct.1' 

To  which  an  official  reply,  in  cipher,  was  delivered  to  Mont- 
gomery by  an  agent  of  the  state  department  in  Richmond,  dated 
October  19,  1864,  as.  follows  : 

"  Your  letter  of  the  13th  instant  is  at  hand.  There  is  yet  time 
enough  to  colonize  many  voters  before  November.  A  blow  will  shortly 
be  stricken  here.  It  is  not  quite  time.  General  Longstreet  is  to 
attack  Sheridan  without  delay,  and  then  move  north  as  far  as  practi- 
cable toward  unprotected  points.  This  will  be  made  instead  of 
movement  before  mentioned.  He  will  endeavor  to  assist  the  repub- 
licans in  collecting  their  ballots.  Be  watchful  and  assist  him." 

On  the  very  day  of  the  date  of  this  Richmond  despatch  Sheridan 
was  attacked,  with  what  success  history  will  declare.  The  court 
will  not  fail  to  notice  that  the  re-election  of  Mr.  Lincoln  is  to  be  pre- 
vented if  possible,  by  any  and  every  means.  Nor  will  they  fail 
to  notice  that  flokomb  is  to  "explain  this"— the  same  person 
who,  in  Canada,  was  the  friend  and  advisor  of  Alston,  who  pro- 


posed  to  Davis  the  assassination  of  the  "deadliest  enemies"  of  the 
rebellion. 

In  the  despatch  of  the  13th  of  October,  which  was  borne  by  Mont- 
gomery, and  transmitted  to  Richmond  in  October  last,  you  will  find 
these  words  :  "Our  friends  shall  be  immediately  set  to  work  as 
you  direct.''  Mr.  Lincoln  is  the  subject  of  that  despatch.  Davis  is 
therein  notified  that  his  agents  in  Canada  look  upon  the  re-election 
of  Mr.  Lincoln  in  November  as  almost  certain.  In  this  connexion 
he  is  assured  by  those  agents,  that  the  friends  of  their  cause  are  to 
b"  set  to  work  as  Davis  had  directed.  The  conversations,  which  are 
proved  by  witnesses  whose  character  stands  unimpeached,  disclose 
what  "work"  the  "  friends"  were  to  do  under  the  direction  of  Davis 
himself.  Who  were  these  "friends,"  and  what  was  "the  work" 
which  his  agents,  Thompson,  Clay,  Tucker  and  Sanders  had  been 
directed  to  set  them  at?  Let  Thompson  answer  for  himself.  In  a 
conversation  with  Richard  Montgomery  in  the  summer  of  1864,. 
Thompson  said  that  "he  had  his  friends,  confederates,  all  over  the 
northern  States,  who  were  ready  and  willing  to  go  any  lengths  for 
the  good  of  the  cause  of  the  south,  and  he  could  at  any  time  have 
the  tyrant  Lincoln,  of  any  other  of  his  advisers  that  he  chose,  put  out 
of  his.  way;  that  they  would  not  consider  it  a  crime  when  done  for  the 
cause  of  the  confederacy.' '  This  conversation  was  repeated  by  the 
witness  in  the  summer  of  1864  to  Clement  C.  Clay,  who  immediately 
stated  :  "  That  is  so  ;  we  are  all  devoted  to  our  cause  and  ready  to  go 
any  length — to  do  anything  under  the  sun." 

At  and  about  the  time  that  these  declarations  of  Clay  and  Thomp- 
son were  made,  Alston,  who  made  the  proposition,  as  we  have  seen,  to 
Davis,  to  be  furnished  with  papers  to  go  north  and  rid  the  confederacy 
of  some  of  its  "deadliest  enemies,"  was  in  Canada.  He  was  doubt- 
less one  of  the  "friends"  referred  to.  As  appears  by  the  testimony 
of  Montgomery,  Payne,  the  prisoner  at  your  bar,  was  about  that  time 
in  Canada,  and  was  seen  standing  by  Thompson's  door,  engaged  in 
a  conversation  with  Clay,  between  whom  and  the  witness  some  words 
were  interchanged,  when  Clay  stated  he  (Payne)  was  one  of  their 
friends — "we  trust  him."  It  is  proved  beyond  a  shadow  of  doubt 
that  in  October  last  John  Wilkes  Booth,  the  assassin  of  the  President, 
was  also  in  Canada  and  upon  intimate  terms  with  Thompson,  Clay, 
Sanders,  and  other  rebel  agents.  Who  can  doubt,  in  the  light  of  the 
events  which  have  since  transpired,  that  he  was  one  of  the  "friends" 
to  be  "  set  to  work,"  as  Davis  had  already  directed — not,  perhaps,  as 
yet  to  assassinate  the  President,  but  to  do  that  other  work  vvhich  is 


suggested  in  the  letter  of  Oldham,  indorsed  by  Davis  in  his  own 
hand,  and  spread  upon  your  record — the  work  of  the  secret  incendiary, 
which  was  to  "  fill  the  people  of  the  north  with  terror  and  conster- 
nation." The  other  "work"  spoken  of  by  Thompson — putting  the 
tyrant  Lincoln  and  any  of  his  advisers  out  of  the  way,  was  work  doubt- 
less to  be  commenced  only  after  the  re-election  of  Mr.  Lincoln,  which 
they  had  already  declared  in  their  despatch  to  their  employer,  Davis, 
was  with  them  a  foregone  conclusion.  At  all  events,  it  was  not  until 
after  the  presidential  election  in  November  that  Alston  proposed  to 
Davis  to  go  north  on  the  work  of  assassination  ;  nor  was  it  until  :.rter 
that  election  that  Booth  was  found  in  possession  of  the  letter  which 
is  in  evidence,  and  which  discloses  the  purpose  to  assassinate  the 
President.  Being  assured,  however,  when  Booth  was  with  them 
in  Canada,  as  they  had  already  declared  in  their  despatch,  that  the 
re-election  of  Mr.  Lincoln  was  certain,  in  which  event  there  would  be  no 
hope  for  the  confederacy,  they  doubtless  entered  into  the  arrangement 
with  Booth  as  one  of  their  "friends,"  that  as  soon  as  that  fact  was 
determined  he  should  go  "to  work,"  and  as  soon  as  might  be  "rid 
the  confederacy  of  the  tyrant  Lincoln  and  of  his  advisers." 

That  these  persons  named  upon  your  record,  Thompson,  Sanders, 
Clay,  Cleary,  and  Tucker,  were  the  agents  of  Jefferson  Davis,  is 
another  fact  established  in  this  case  beyond  a  doubt.  They  made 
affidavit  of  it  themselves,  of  record  here,  upon  the  examination  of 
their  "friends,"  charged  with  the  raid  upon  St.  Albans,  before 
Judge  Smith,  in  Canada.  It  is  in  evidence  also  by  the  letter  of  Clay, 
before  referred  to. 

The  testimony,  to  which  I  have  thus  briefly  referred,  shows, by  the 
letter  of  his  agents,  of  the  13th  of  October,  that  Davis  had  before 
directed  those  agents  to  set  his  friends  to  work.  By  the  letter  of 
Clay  it  seems  that  his  direction  had  been  obeyed,  and  his  friends 
had  been  set  to  work,  in  the  burning  and  robbery  and  murder  at  St. 
Albans,  in  the  attempt  to  burn  the  city  of  New  York,  and  in  the 
attempt  to  introduce  pestilence  into  this  capital  and  into  the  house  of 
the  President.  It  having  appeared,  by  the  letter  of  Alston,  and  the 
indorsement  thereon,  that  Davis  had  in  November  entertained  the 
proposition  of  sending  agents,  that  is  to  say,  "friends,"  to  the  north 
to  not  only  "spread  terror  and  consternation  among  the  people"  by 
means  of  his  "chemical  preparations,"  but  also,  in  the  words  of  that 
letter,  "  to  strike,"  by  the  hands  of  assassins,  "  at  the  heart' s  blood' ' 
of  the  deadliest  enemies  in  the  north  to  the  confederacy  of  traitors  ; 


63 

it  has  also  appeared  by  the  testimony  of  many  respectable  witnesses, 
among  others  the  attorneys  who  represented  the  people  of  the  United 
States  and  the  State  of  Vermont,  in  the  preliminary  trial  of  the 
raiders  in  Canada,  that  Clay,  Thompson,  Tucker,  Sanders  and  Cleary 
declared  themselves  the  agents  of  the  confederacy.  It  also  clearly 
appears  by  the  correspondence  referred  to,  and  the  letter  of  Clay, 
that  they  were  holding,  and  at  any  time  able  to  command,  blank  com- 
missions from  Jefferson  Davis  to  authorize  their  friends  to  do  what- 
ever work  they  appointed  them  to  do,  in  the  interests  of  the  rebel- 
lion, by  the  destruction  of  life  and  property  in  the  north. 

If  a  prima  facie  case  justifies,  as  we  have  seen  by  the  law  of  evi- 
dence it  does,  the  introduction  of  all  declarations  and  acts  of  any  of 
the  parties  to  a  conspiracy,  uttered  or  done  in  the  prosecution  of  the 
common  design,  as  evidence  against  all  the  rest,  it  re.sults,  that  what- 
ever was  said  or  done  in  furtherance  of  the  common  design,  after  this 
month  of  October,  1864,  by  either  of  these  agents  in  Canada,  is 
evidence  not  only  against  themselves,  but  against  Davis  as  well,  of 
his  complicity  with  them  in  the  conspiracy. 

Mr.  Montgomery  testifies  that  he  met  Jacob  Thompson  in  January, 
at  Montreal,  when  he  said  that  "a  proposition  had  been  made  to  him 
to  rid  the  world  of  the  tyrant  Lincoln,  Stanton,  Grant,  and  some  others  ; 
that  he  knew  the  men  who  had  made  the  proposition  were  bold, 
daring  men,  able  to  execute  what  they  undertook ;  that  he  himself 
was  in  favor  of  the  proposition,  but  had  determined  to  defer  his 
answer  until  he  had  consulted  his  government  at  Richmond  ;  that  he 
was  then  only  awaiting  their  approval."  This  was  about  the  middle 
of  January,  and  consequently  more  than  a  month  after  Alston 
had  made  his  proposition  direct  to  Davis,  in  writing,  to  go  north 
and  rid  their  confederacy  of  some  of  its  "deadliest  enemies."  It  was 
at  the  time  of  this  conversation  that  Payne,  the  prisoner,  was  seen 
by  the  witness  standing  at  Thompson's  door  in  conversation  with 
Clay.  This  witness  also  shows  the  intimacy  between  Thompson, 
Clay,  Cleary,  Tucker,  and  Sanders. 

A  few  days  after  the  assassination  of  the  President,  Beverley  Tucker 
said  to  this  witness  "that  President  Lincoln  deserved  his  death  long 
ago  ;  that  it  was  a  pity  he  didn't  have  it  long  ago,  and  it  was  too 
bad  that  the  boys  had  not  been  allowed  to  act  when  they  wanted  to." 
This  remark  undoubtedly  had  reference  to  the  propositions  made 
in  the  fall  to  Thompson,  and  also  to  Davis,  to  rid  the  south  of  its 
deadliest  enemies  by  their  assassination.  Cleary,  who  was  accredited 
by  Thompson  as  his  confidential  agent,  also  stated  to  this  witness 


64 

that  Booth  was  one  of  the  party  to  whom  Thompson  had  referred  in 
the  conversation  in  January,  in  which  he  said  he  knew  the  men  who 
were  ready  to  rid  the  world  of  the  tyrant  Lincoln,  and  of  Stanton  and 
Grant.  Cleary  also  said,  speaking  of  the  assassination,  "  that  it  was 
a  pity  that  the  whole  work  had  not  been  done,"  and  added,  "  they 
had  better.look  out — we  are  not  done  yet ;"  manifestly  referring  to  the 
statement  made  by  his  employer,  Thompson,  before  in  the  summer, 
that  not  only  the  tyrant  Lincoln,  but  Stanton  and  Grant,  and  others 
of  his  advisers,  should  be  put  out  of  the  way.  Cleary  also  stated  to 
this  witness  that  Booth  had  visited  Thompson  twice  in  the  winter,  the 
last  time  in  December,  and  had  also  been  there  in  the  summer. 

Sanford  Conover  testified  that  he  had  been  for  some  time  a  clerk 
in  the  war  department  at  Richmond;  that  in  Canada  he  knew  Thomp- 
son, Sanders,  Cleary,  Tucker,  Clay,  and  other  rebel  agents  ;  that  he 
knew  John  H.  Surratt  and  John  "Wilkes  Booth ;  that  he  saw  Booth 
there  upon  one  occasion,  and  Surratt  upon  several  successive  days  ; 
that  he  saw  Surratt  (whom  he  describes)  in  April  last,  in  Thompson's 
room,  and  also  in  company  with  Sanders  ;  that  about  the  6th  or  7th 
of  April  Surratt  delivered  to  Jacob  Thompson  a  despatch  brought 
by  him  from  Benjamin  at  Richmond,  enclosing  one  in  cipher  from 
Davis.  Thompson  had  before  this  proposed  to  Conover  to  engage  in 
a  plot  to  assassinate  President  Lincoln  and  his  cabinet,  and  on  this 
occasion  he  laid  his  hand  upon  these  despatches  and  said,  "This 
makes  the  thing  all  right,"  referring  to  the  assent  of  the  rebel  au- 
thorities, and  stated  that  the  rebel  authorities  had  consented  to  the 
plot  to  assassinate  Lincoln,  Johnson,  the  Secretary  of  War,  Secretary 
of  State,  Judge  Chase,  and  General  Grant.  Thompson  remarked  fur- 
ther that  the  assassination  of  these  parties  would  leave  the  govern- 
ment of  the  United  States  entirely  without  a  head  ;  that  there  was 
no  provision  in  the  Constitution  of  the  United  States  by  which  they 
could  elect  another  President,  if  these  men  were  put  out  of  the  way. 

In  speaking  of  this  assassination  of  the  President  and  others, 
Thompson  said  that  it  was  only  removing  them  from  office,  that  the 
killing  of  a  tyrant  was  no  murder.  It  seems  that  he  had  learned  pre- 
cisely the  same  lesson  that  Alston  had  learned  in  November,  when 
he  communicated  with  Davis,  and  said,  speaking  of  the  President's 
assassination,  "he  did  not  think  anything  dishonorable  that  would 
serve  their  cause."  Thompson  stated  at  the  same  time  that  he  had 
conferred  a  commission  on  Booth,  and  that  everybody  engaged  in  the 
enterprise  would  be  commissioned,  and  if  it  succeeded,  or  failed,  and 
they  escaped  into  Canada,  they  could  not  be  reclaimed  under  the  ex- 


65 

tradition  treaty.  The  fact  that  Thompson  and  other  rebel  agents  held 
blank  commissions,  as  I  have  said,  has  been  proved,  and  a  copy  of 
one  of  them  is  of  record  here. 

This  witness  also  testifies  to  a  conversation  with  William  C.  Cleary, 
shortly  after  the  surrender  of  Lee's  army,  and  on  the  day  before 
the  President's  assassination,  at  the  St.  Lawrence  hotel,  Montreal, 
when  speaking  of  the  rejoicing  in  the  States  over  the  capture  of 
Richmond,  Cleary  said,  "they  would  put  the  laugh  on  the  other  side 
of  their  mouth  in  a  day  or  two."  These  parties  knew  that  Conover 
was  in  the  secret  of  the  assassination,  and  talked  with  him  about  it 
as  freely  as  they  would  speak  of  the  weather.  Before  the  assassina- 
tion he  had  a  conversation  also  with  Sanders,  who  asked  him  if  he 
knew  Booth  well,  and  expressed  some  apprehension  that  Booth  would 
"make  a  failure  of  it;  that  he  was  desperate  and  reckless,  and  he  was 
afraid  the  whole  thing  would  prove  a  failure." 

Dr.  James  D.  Merritt  testifies  that  George  Young,  one  of  the  par- 
ties named  in  the  record,  declared  in  his  presence,  in  Canada,  last 
fall,  that  Lincoln  should  never  be  inaugurated;  that  they  had  friends 
in  Washington,  who,  I"  suppose,  were  some  of  the  same  friends  re- 
ferred to  in  the  despatch  of  October  13,  and  which  Davis  had  di- 
rected them  "  to  set  to  work."  George  N.  Sanders  also  said  to  him 
"that  Lincoln  would  keep  himself  mighty  plose  if  he  did  serve 
another  term;"  while  Steele  and  other  confederates  declared  that  the 
tyrant  never  should  serve  another  term.  He  heard  the  assassination 
discussed  at  a  meeting  of  these  rebel  agents  in  Montreal  in  February 
last.  "  Sanders  said  they  had  plenty  of  money  is  accomplish  the  as- 
sassination, and  named  over  a  number  of  persons  who  were  ready  and 
willing  to  engage  in  undertaking  to  remove  the  President,  Vice 
President,  the  cabinet;  and  some  of  the  leading  generals.  At  this 
meeting  he  read  a  letter  which  he  had  received  from  Davis,  which 
justified  him  in  making  any  arrangements  that  he  could  to  accom- 
plish the  object."  This  letter  the  witness  heard  read,  and  it,  in  sub- 
stance, declared  that  if  the  people  in  Canada  and  the  southerners  in 
the  States  were  willing  to  submit  to  be  governed  by  such  a  tyrant  a& 
Lincoln,  he  didn't  wish  to  recognize  them  as  friends.  The  letter  waa 
read  openly;  it  was  also  handed  to  Colonel  Steele,  George  Young, 
Hill,  and  Scott,  to  be  read.  This  was  about  the  middle  of  February 
last.  At  this  meeting  Sanders  named  over  the  persons  who  were 
willing  to  accomplish  the  assassination,  and  among  the  persons  thus 
named  was  Booth,  whom  the  witness  had  seen  in  Canada  in  October; 
5s 


66 

also  George  Harper,  one  of  the  conspirators  named  on  the  record, 
Caldwell,  Randall,  Harrison,  and  Surratt. 

The  witness  understood,  from  the  reading  of  the  letter,  that  if  the 
President  Vice -President,  and  cabinet  could  be  disposed  of  it  would 
satisfy  the  people  of  the  north  that  the  southerners  had  friends  in 
the  north  •  that  a  peace  could  be  obtained  on  better  terms  ;  that  the 
rebels  hud  endeavored  to  bring  about  a  war  between  the  United 
States  and  England,  and  that  Mr.  Seward,  through  his  energy  and 
sagacity,  had  thwarted  all  their  efforts;  that  was  given  as  a  reason  for 
removing  him.  On  the  5th  or  6th  of  last  April  this  witness  met 
George  Harper,  Caldwell,  Randall,  and  others,  who  are  spoken  of  in 
this  meeting  at  Montreal  as  engaged  to  assassinate  the  President  and 
cabinet,  when  Harper  said  they  were  going  to  the  States  to  make  a 
row  such  as  had  never  been  heard  of,  and  added  that  "if  I  (the 
witness)  did  not  hear  of  the  death  of  Old  Abe,  of  the  Vice-President, 
and  of  General  Dix  in  less  than  ten  days,  I  might  put  him  down  as  a 
fool.  That  was  on  the  6th  of  April.  He  mentioned  that  Booth  was 
iu  Washington  at  that  time.  He  said  they  had  plenty  of  friends  in 
Washington,  and  that  some  fifteen  or  twenty  were  going." 

This  witness  ascertained,  on  the  8th  of  April,  that  Harper  and 
others  had  left  for  the  States.  The  proof  is  that  these  parties  could 
come  through  to  Washington  from  Montreal  or  Toronto  in  thirty-six 
hours.  They  did  come,  and  within  the  ten  days  named  by  Harper 
the  President  was  murdered  !  Some  attempts  have  been  made  to 
discredit  this  witness,  (Dr.  Merritt,)  not  by  the  examination  of  wit- 
nesses in  court,  not  by  any  apparent  want  of  truth  in  .the  testimony. 
but  by  the  ex  parte  statements  of  these  rebel  agents  in  Canada  and 
their  hired  advocates  in  the  United  States.  There  is  a  statement 
upon  the  record,  verified  by  an  official  communication  from  the  War 
Department,  which  shows  the  truthfulness  of  this  witness,  and  that 
is,  that  before  the  assassination,  learning  that  Harper  and  his  asso- 
ciates had  started  for  the  States,  informed  as  he  was  of  their  purpose 
to  assassinate  the  President,  cabinet,  and  leading  generals,  Merritt 
deemed  it  his  duty  to  call,  and  did  call,  on  the  10th  of  April,  upon  a 
justice  of  the  peace  in  Canada,  named  Davidson,  and  gave  him  the 
information,  that  he  might  take  steps  to  stop  these  proceedings.  The 
correspondence  on  this  subject  with  Davidson  has  been  brought  into 
court.  Dr.  Merritt  testifies,  further,  that  after  this  meeting  in  Mon- 
treal he  had  a  conversation  with  Clement  C.  Clay,  in  Toronto,  about 
the  letter  from  Jefferson  Davis  which  Sanders  had  exhibited,  in  which 
conversation  Clay  gave  the  witness  to  understand  that  he  knew  the 


67 

nature  of  the  letter  perfectly,  and  remarked  that  he  thought  "the  end 
would  justify  the  means."  The  witness  also  testifies  to  the  presence 
of  Booth  with  Sanders  in  Montreal  last  fall,  and  of  Surratt  in  Toronto 
in  February  last. 

The  court  must  be  satisfied,  by  the  manner  of  this  and  other  wit- 
nesses to  the  transactions  in  Canada,  as  well  as  by  the  fact  that  they 
are  wholly  uncontradicted  in  any  material  matter  that  they  state,  that 
they  speak  the  truth,  and  that  the  several  parties  named  on  your 
record,  Davis,  Thompson,  Cleary,  Tucker,  Clay,  Young,  Harper, 
Booth,  and  John  H.  Surratt  did  combine  and  conspire  together  in 
Canada  to  kill  and  murder  Abraham  Lincoln,  Andrew  Johnson,  Wil- 
liam H.  Seward,  and  Ulysses  S.  Grant.  That  this  agreement  was 
substantially -entered  into  by  Booth  and  the  agents  of  Davis  in  Canada 
as  early  as  October  there  cannot  be  any  doubt.  The  language  of 
Thompson  at  that  time  and  before  was,  that  he  was  in  favor  of  the 
assassination.  His  further  language  was,  that  he  knew  the  men  who 
were  ready  to  do  it ;  and  Booth,  it  is  shown,  was  there  at  that  time, 
and,  as  Thompson's  secretary  says,  was  one  of  the  men  referred  to 
by  Thompson. 

The  fact  that  others,  besides  the  parties  named  on  the  re-cord,  were, 
by  the  terms  of  the  conspiracy,  to  be  assassinated,  in  nowise  affects 
the  case  now  on  trial.  If  it  is  true%that  these  parties  did  conspire  to 
murder  other  parties,  as.  well  as  those  named  upon  the  record,  the 
substance  of  the  charge  is  proved. 

It  is  also  true  that  if,  in  pursuance  of  that  conspiracy,  Booth, 
confederated  with  Surratt  and  the  accused,  killed  and  murdered 
Abraham  Lincoln,  the  charge  and  specification  is  proved  literally  as 
stated  on  your  record,  although  their  conspiracy  embraced  other 
persons.  In  law  the  case  stands,  though  it  may  appear  that  the  con- 
spiracy was  to  kill  and  murder  the  parties  named  in  the  record  and 
others  not  named  in  the  record.  If  the  proof  is  that  the  accused, 
with  Booth,  Surratt,  Davis,.  <fcc.,  conspired  to  kill  and  murder  one  or 
more  of  the  persons  named,  the  charge  of  conspiracy  is  proved . 

The  declaration  of  Sanders,  as  proved,  that  there  was  plenty  of 
money  to  carry  out  this  assassination,  is  very  strongly  corroborated 
by  the  testimony  of  Mr.  Campbell,  cashier  of  the  Ontario  Bank,  who 
states  that  Thompson,  during  the  current  year  preceding  the  assassi- 
nation, had  upon  deposit  in  the  Montreal  branch  of  the  Ontario  Bank 
six  hundred  and  forty-nine  thousand  dollars,  besides  large  sums  to 
his  credit  in  other  banks  in  the  province. 

There  is  a  further  corroboration  of  the  testimony  of  Couover  as  to 


68 

the  meeting  of  Thompson  and  Surratt  in  Montreal,  and  the  delivery 
of  the  despatches  from  Richmond,  on  the  6th  or  7th  of  April,  first, 
in  the  fact  which  is  shown  by  the  testimony  of  Cheste*,  that  in  the 
winter  or  spring  Booth  said  he  himself  or  some  other  party  must  go 
to  Richmond,  and,  second,  by  the  letter  of  Arnold  dated  27th  of  March 
last,  that  he  preferred  Booth's  first  query,  that  he  would  first  go  to 
Richmond  and  see  how  they  would  take  it,  manifestly  alluding  to  the 
proposed  assassination  of  the  President.  It  does  not  follow  because 
Davis  had  written  a  letter  in  February  which,  in  substance,  approved 
the  general  object,  that  the  parties  Were  fully  satisfied  with  it;  be- 
cause it  is  clear  there  was  to  be  some  arrangement  made  about  the 
funds  ;  and  it  is  also  clear  that  Davis  had  not  before  as  distinctly  ap- 
proved and  sanctioned  this  act  as  his  agents  either  in  Canada  or  here 
desired.  Booth  said  to  Chester,  "We  must  have  money  ;  there  is 
money  in  this  business,  and  if  you  will  enter  into  it  I  will  place  three 
thousand  dollars  at  the  disposal  of  your  family;  but  I  have  no  money 
myself,  and  must  go  to  Richmond,"  or  one  of  the  parties  must  go,  "to 
get  money  to  carry  out  the  enterprise."  This  was  one  of  the  arrange- 
ments that  was  to  be  "  made  right  in  Canada."  The  funds  at  Thomp- 
son's disposal,  as  the  banker  testifies,  were  exclusively  raised  by  drafts 
of  the  secretary  of  the  treasury  of  the  Confederate  States  upon  Lon- 
don, deposited  in  their  bank  to  the.  credit  of  Thompson. 

Accordingly,  about  the  27th  of  March,  Surratt  did  go  to  Richmond. 
On  the  3d  of  April  he  returned  to  Washington,  and  the  same  day 
left  for  Canada.  Before  leaving,  he  stated  to  Weichmarm  that  when 
in  Richmond  he  had  had  a  conversation  with  Davis  and  with  Benjamin. 
The  fact  in  this  connexion  is  not  to  be  overlooked,  that  on  or  about 
the  day  Surratt  arrived  in  Montreal,  April  6,  Jacob  Thompson,  as  the 
cashier  of  the  Ontario  Bank  states,  drew  of  these  confederate  funds  the 
sum  of  one  hundred  and  eighty  thousand  dollars  in  the  form  of  cer- 
tificates, which,  as  the  bank  officer  testifies,  "might  be  used  any- 
where." 

What  more  is  wanting?  Surely  no  word  further  need  be  spoken 
to  show  that  John  Wilkes  Booth  was  in  this  conspiracy  ;  that  John 
H.  Surratt  was  in  this  conspiracy  ;  and  that  Jefferson  Davis  and  his 
several  agents  named,  in  Canada,  were  in  this  conspiracy.  If  any 
additional  evidence  is  wanting  to  show  the  complicity  of  Davis  in  it, 
let  the  paper  found  in  the  possession  of  his  hired  assassin  Booth 
come  to  bear  witness  against  him.  That  paper  contained  the  secret 
cipher  which  Davis  used  in  his  state  department  at  Richmond, 
which  he  employed  in  communicating  with  his  agents  in  Canada, 


69 

and  which  they  employed  in  the  letter  of  October  13,  notifying 
him  that  "their  friends  would  be  set  to  work  as  lie  had  directed." 
The  letter  in  cipher  found  in  Booth's  possession  is  translated  here  by 
the  use  of  the  cipher  machine  now  in  court,  which,  as  the  testimony 
of  Mr.  Dana  shows,  he  brought  from  the  rooms  of  Da  vis' s' state  de- 
partment in  Richmond.  "Who  gave  Booth  this  secret  cipher  ?  Of 
what  use  was  it  to  him  if  he  was  not  in  confederation  with  Davis  ? 

But  there  is  one  other  item  of  testimony  that  ought,  among  honest 
and  intelligent  people  at  all  conversant  with  this  evidence,  to  end  all 
further  inquiry  as  to  whether  Jefferson  Davis  was  one  of  the  parties, 
with  Booth,  as  charged  upon  this  record,  in  the  conspiracy  to  assassi- 
nate the  President  and  others.  That  is,  that  on  the  fifth  day  after  the 
assassination,  in  the  city  of  Charlotte,  North  Carolina,  a  telegraphic 
despatch  was  received  by  him,  at  the  house  of  Mr.  Bates,  from  John 
C.  Breckinridge,  his  rebel  secretary  of  war,  which  despatch  is  pro- 
duced here,  identified  by  the  telegraph  agent,  and  placed  upon  your 
record  in  the  words  following  : 

"GREENSBORO',  April  19,  1865. 
' '  His  Excellency  President  Davis  : 

"President  Lincoln  was  assassinated  in  the  theatre  in  "Washington 
on  the  night  of  the  14th  inst.  Seward's  house  was  entered  on  the 
same  night  and  he  was  repeatedly  stabbed,  and  is  probably  mortally 
wounded. 

"JOHN  C.  BRECKINRIDGE." 

At  the  time  this  despatch  was  handed  to  him,  Davis  was  addressing 
a  meeting  from  the  steps  of  Mr.  Bates' s  house,  and  after  reading  the 
despatch  to  the  people  he  said:  "  If  it  were  to  be  done,  it  were  better 
it  were  well  done."  Shortly  afterwards,  in  the  house  of  the  witness, 
in  the  same  city,  Breckinridge,  having  come  to  see  Davis,  stated  his 
regret  that  the  occurrence  had  happened,  because  he  deemed  it  un- 
fortunate for  the  people  of  the  south  at  that  time.  Davis  replied,  re- 
ferring to  the  assassination,  "Well,  general,  I  don't  know  ;  if  it  were 
to  be  done  at  all,  it  were  better  that  it  were  well  done  ;  and  if  the 
same  had  been  done  to  Andy  Johnson,  the  beast,  and  to  Secretary 
Stanton,  the  job  would  then  be  complete." 

Accomplished  as  this  man  was  in  all  the  arts  of  a  conspirator,  he 
was  not  equal  to  the  task — as  happily,  in  the  good  providence  of  God, 
no  mortal  man  is — of  concealing,  by  any  form  of  words,  any  great 
crime  which  he  may  have  meditated  or  perpetrated  either  against 
his  government  or  his  fellow-men.  It  was  doubtless  furthest  from 


70 

Jefferson  Davis' s  purpose  to  make  confession,  and  yet  he  did  make  a 
confession.  His  guilt  demanded  utterance;  that  demand  he  could  not 
resist ;  therefore  his  words  proclaimed  his  guilt,  in  spite  of  his  pur- 
pose to  conceal  it.  He  said,  '•  if  it  were  to  be  done,  it  were  Letter  it 
were  icell  done."  Would  any  man  ignorant  of  the  conspiracy  be 
able  to  devise  and  fashion  such  a  form  of  speech  as  that  ?  Had  not 
the  President  been  murdered  ?  Had  he  not  reason  to  believe  that 
the  Secretary  of  State  had  been  mortally  wounded  ?  Yet  he  was  not 
satisfied,  but  was  compelled  to  say,  "it  were  better  it  were  well 
djne" — that  is  to  say,  all  that  had  been  agreed  to  be  done  had  not 
been  done.  Two  days  afterwards,  in  his  conversation  with  Breckin- 
ridge,  he  not  only  repeats  the  same  form  of  expression,  "  if  it  were  to 
be  done  it  were  better  it  were  loell  done,"  but  adds  these  words :  '  'And  if 
the  same  had  been  done  to  Andy  Johnson,  the  beast,  and  to  Secretary 
Stantou,  the  job  would  then  be  complete. ' '  He  would  accept  the  assassina- 
tion of  the  President,  the  Vice  President,  of  the  Secretary  of  State  and 
the  Secretary  of  War,  as  a  complete  execution  of  the  "job,"  which 
he  had  given  out  upon  contract,  and  which  he  had  "  made  all  right,'' 
so  far  as  the  pay  was  concerned,  by  the  despatches  he  had  sent  to 
Thompson  by  Surratt,  one  of  his  hired  assassins.  Whatever  may 
be  the  conviction  of  others,  my  own  conviction  is  that  Jefferson 
Davis  is  as  clearly  proven  guilty  of  this  conspiracy  as  is  John  Wilkes 
Booth,  by  whose  hand  Jefferson  Davis  inflicted  the  mortal  wound 
upon  Abraham  Lincoln.  His  words  of  intense  hate,  and  rage,  and 
disappointment  are  not  to  be  overlooked — that  the  assassins  had  not 
done  their  work  well ;  that  they  had  not  succeeded  in  robbing  the 
people  altogether  of  their  constitutional  Executive  and  his  advisers  ; 
and  hence  he  exclaims,  "If  they  had  killed  Andy  Johnson, the  beast!" 
Neither  can  he  conceal  his  chagrin  and  disappointment  that  the  War 
Minister  of  the  republic,  whose  energy,  incorruptible  integrity,  sleep- 
less vigilance,  arid  executive  ability  had  organized  day  by  day,  month 
by  month,  and  year  by  year,  victory  for  our  arms,  had  escaped  the 
knife  of  the  hired  assassins.  The  job,  says  this  procurer  of  assassina- 
tion, was  not  well  done  ;  it  had  been  better  if  it  had  been  well  done  ! 
Because  Abraham  Lincoln  had  been  clear  in  his  great  office,  and  had 
saved  the  nation's  life  by  enforcing  the  nation's  laws,  this  traitor  de- 
clares he  must  be  murdered;  because  Mr.  Seward,  as  the  foreign  sec- 
retary of  the  country,  had  thwarted  the  purposes  of  treason  to  plunge 
his  country  into  a  war  with  England,  he  must  be  murdered;  because, 
upon  the  murder  of  Mr.  Lincoln,  Andrew  Johnson  would  succeed  to 
the  presidency,  and  because  he  had  been  true  to  the  Constitution  and 


71 

government,  faithful  found  among  the  faithless  of  his  own  State, 
clinging  to  the  falling  pillars  of  the  republic  when  others  had  fled, 
he  must  be  murdered;  and  because  the  Secretary  of  War  had  taken 
care,  by  the  faithful  discharge  of  his  duties,  that  the  republic 
should  live  and  not  die,  he  must  be  murdered.  Inasmuch  as  these 
two  faithful  officers  were  not  also  assassinated,  assuming  that  the 
Secretary  of  State  was  mortally  wounded,  Davis  could  not  conceal  his 
disappointment  and  chagrin  that  the  work  was  not'"  well  done,"  that 
"the  job  was  not  complete  !  " 

Thus  it  appears  by  the  testimony  that  the  proposition  made  to 
Davis  was  to  kill  and  murder  the  deadliest  enemies  of  the  confederacy — 
not  to  kidnap  them,  as  is  now  pretended  here  ;  that  by  the  declaration 
of  Sanders,  Tucker,  Thompson,  Clay,  Cleary,  Harper  and  Young,  the 
conspirators  in  Canada,  the  agreement  and  combination  among  them 
was  to  kill  and  murder  Abraham  Lincoln,  William  H.  Seward,  .Andrew 
Johnson,  Ulysses  S.  Grant,  Edwin  M.  Stanton,  and  others  of  his  ad- 
visors, and  not  to  kidnap  them  ;  it  appears  from  every  utterance  of 
John  Wilkes  Booth,  as  well  as  from  the  Charles  Selby  letter,  of  which 
mention  will  presently  be  made,  that,  as  early  as  November,  .the 
proposition  with  him  was  to  kill  and  murder,  not  to  kidnap. 

Since  the  first  examination  of  Conover,  who  testified,  as  the  court 
will  remember,  to  many  important  facts  against  these  conspirators 
and  agents  of  Davis  in  Canada — among  others,  the  terrible  and  fiend- 
ish plot  disclosed  by  Thompson,  Fallen,  and  others,  that  they  had  as- 
certained the  volume  of  water  in  the  reservoir  supplying  New  York 
city,  estimated  the  quantity  of  poison  required  to  render  it  deadly, 
and  intended  thus  to  poison  a  whole  city — Conover  returned  to  Can- 
ada, by  direction  of  this  court,  for  the  purpose  of  obtaining  certain 
documentary  evidence.  There,  about  the  9th  of  June,  he  met  Bev- 
erley  Tucker,  Sanders,  and  other  conspirators,  and  conversed  with 
them.  Tucker  declared  that  Secretary  Stanton,  whom  he  denounced 
as  "a  scoundrel,"  and  Judge  Holt,  whom  he  called  "a  bloodthirsty 
villain,"  "could  protect  themselves  as  long  as  they  remained  in 
office  by  a  guard,  but  that  would  not  always  be  the  case,  and,  by  the 
Eternal,  he  had  a  large  account  to  settle  with  them."  After  this, 
the  evidence  of  Conover  here  having  been  published,  these  parties 
called  upon  him  and  asked  him  whether  he  had  been  to  Washington, 
and  had  testified  before  this  court.  Conover  denied  it ;  they  insisted, 
and  took  him  to  a  room,  where,  with  drawn  pistols,  they  compelled 
him  to  consent  to  make  an  affidavit  that  he  had  been  falsely  person- 
ated here  by  another,  and  that  he  would  make  that  affidavit  before  a 


Mr.  Kerr,  who  would  witness  it.  They  then  called  in  Mr.  Kerr  to 
certify  to  the  public  that  Conover  had  made  such  a  denial.  They 
also  compelled  this  witness  to  furnish  for  publication  an  advertise- 
ment offering  a  reward  of  five  hundred  dollars  for  the  arrest  of  the 
"infamous  and  perjured  scoundrel"  who  had  recently  personated 
James  W.  Wallace  under  the  name  of  Sanford  Conover,  and  testified 
to  a  tissue  of  falsehoods  before  the  military  commission  at  Washing- 
ton, which  advertisement  was  published  in  the  papers. 

To  these  facts  Mr.  Conover  now  testifies,  and  also  discloses  the 
fact  that  these  same  men  published,  in  the  report  of  the  proceedings 
before  Judge  Smith,  an  affidavit  purporting  to  be  his,  but  which  he 
never  made.  The  affidavit  which  he  in  fact  made,  and  which  was 
published  in  a  newspaper  at  that  time,  produced  here,  is  set  out  sub- 
stantially upon  your  record,  and  agrees  with  the  testimony  upon  the 
same  point  given  by  him  in  this  court. 

To  suppose  that  Conover  ever  made  such  an  affidavit  voluntarily 
as  the  one  wrung  from  him  as  stated  is  impossible.  Would  he  ad- 
vertise for  'his  own  arrest  and  charge  himself  with  falsely  personating 
himself?  But  the  fact  cannot  evade  observation,  that  when  these 
guilty  conspirators  saw  Conover' s  testimony  before  this  court  in  the 
public  prints,  revealing  to  the  world  the  atrocious  plots  of  these 
felon  conspirators,  conscious  of  the  truthfulness  of  his  statements, 
they  cast  about  at  once  for  some  defence  before  the  public,  and  de- 
vised the  foolish  and  stupid  invention  of  compelling  him  to  make  an 
affidavit  that  he  was  not  Sanford  Conover,  was  not  in  this  court, 
never  gave  this  testimony,  but  was  a  practicing  lawyer  in  Montreal! 
This  infamous  proceeding,  coupled  with  the  evidence  before  detailed, 
stamps  these  ruffian  plotters  with  tbe  guilt  of  this  conspiracy. 

John  Wilkes  Booth  having  entered  into  this  conspiracy  in  Canada, 
as  has  been  shown,  as  early  as  October,  he  is  next  found  in  the  city 
of  New  York  on  the  llth  day,  as  I  claim,  of  November,  in  disguise, 
in  conversation  with  another,  the  conversation  disclosing  to  the  wit- 
ness, Mis.  Hudspeth,  that  they  had  some  matter  of  personal  interest 
between  them  ;  that  upon  one  of  them  the  lot  had  fallen  to  go 
to  Washington- — upon  the  other  to  go  to  Newbern.  This  Avitnese, 
upon  being  shown  the  photograph  .of  Booth,  swears  "that  the  face 
is  the  same"  as  that  of  one  of  those  men,  who  she  says  was  a 
young  man  of  education  and  culture,  as  appeared  by  his  conversation, 
and  who  had  a  scar  like  a  bite  near  the  jaw-bone.  It  is  a  fact  proved 
here  by  the  Surgeon  General  that  Booth  had  such  a  scar  on  the  side 
of  his  neck.  Mrs.  Hudspeth  heard  him  say  he  would  leave  for  Wash- 


73 

ington  the  day  after  to-morrow.  His  companion  appeared  angry  be- 
cause it  had  not  fallen  on  him  to  go  to  Washington.  This  took  place 
after  the  presidential  election  in  November.  She  cannot  fix  the 
precise  date,  but  says  she  was  told  that  General  Butler  left  New  York 
on  that  day.  The  testimony  discloses  that  General  Butlerrs  army 
was  on  the  llth  of  November  leaving  New  York.  The  register  of 
the  National  Hotel  shows  that  Booth  left  Washington  on  the  early 
morning  train,  November  11,  and  that  he  returned  to  this  city  on  the 
14th.  Chester  testifies  positively  to  Booth's  presence  in  New  York 
early  in  November.  This  testimony  shows  most  conclusively  that 
Booth  was  in  New  York  on  the  llth  of  November.  The  early  morn- 
ing train  on  which  he  left  Washington  would  reach  New  York  early 
in  the  afternoon  of  that  day.  Chester  saw  him  there  early  in  No- 
vember, and  Mrs-  Hudspeth  not  only  identifies  his  picture,  but  de- 
scribes his  person.  The  scar  upon  his  neck  near  his  jaw  was  peculiar 
and  is  well  described  by  the  witness  as  like  a  bite.  On  that  day 
Booth  had  a  letter  in  his  possession  which  he  accidentally  dropped 
in  the  street  car  in  the  presence  of  Mrs.  Hudspeth,  the  witness,  who 
delivered  it  to  Major  General  Dix  the  same  day,  and  by  whom,  as 
his  letter  on  file  before  this  court  shows,  the  same  was  transmitted 
to  the  War  Department  November  17,  1864.  That  letter  contains 
these  words  : 

"  DEAR  Louis  :  The  time  has  at  last  come  that  we  have  all  so  wished 
for,  and  upon  you  everything  depends.  As  it  was  decided,  before 
you  left,  we  were  to  cast  lots,  we  accordingly  did  so,  and  you  are  to 
be  the  Charlotte  Corday  of  the  19th  century.  When  you  remember 
the  fearful,  solemn  vow  that  was  taken  by  us,  you  will  feel  there  is  no 
drawback.  Abe  must  die,  and  now.  You  can  choose  your  weapons — 
the  cup,  the  knife,  the  bullet.  The  cup  failed  us  once,  and  might  again. 
Johnson,  who  will  give  this,  has  been  like  an  enraged  demon  since  the 
meeting,  because  it  has  not  fallen  upon  him.  to  rid  the  world  of  the 
monster.  *  *  *  You  know  where  to  find  your  friends.  Your 
disguises  are  so  perfect  and  complete  that  without  one  knew  your 
face,  no  police  telegraphic  despatch  would  catch  you.  The  English 
gentleman,  Harcourt,  must  not  act  hastily.  Remember  he  has  ten 
days.  Strike  for  your  home,  strike  for  your  country  •  bide  your  time, 
but  strike  sure.  Get  introduced  ;  congratulate  him  ;  listen  to  his 
stories  ;  (not  many  more  will  the  brute  tell  to  earthly  friends;)  do 
anything  but  fail,  and  meet  us  at  the  appointed  place  within  the 
fortnight.  You  will  probably  hear  from  me  in  Washington.  San- 
ders is  doing  us  no  good  in  Canada. 

"CHAS.  SELBY." 


74 

The  learned  gentleman,  (Mr.  Cox,)  in  his  very  able  and  care- 
fully considered  argument  in  defence  of  O'Laughlin  and  Arnold,  at- 
tached importance  to  this  letter,  and  doubtless  very  clearly  saw  its 
bearing  upon  the  case,  and  therefore  undertook  to  show  that  the  wit- 
ness, Mrs.  Hudspeth,  must  be  mistaken  as  to  the  person  of  Booth. 
The  gentleman  assumes  that  the  letter  of  General  Dix,  of  the  17th 
of  November  last,  transmitting  this  letter  to  the  War  Department, 
reads  that  the  party  who  dropped  the  letter  was  heard  to  say  that  he 
would  start  to  Washington  on  Friday  night  next,  although  the  word 
"  next"  is  not  in  the  letter,  neither  is  it  in  the  quotation  which  the 
gentleman  makes,  for  he  quotes  it  fairly;  yet  he  concludes  that  this 
would  be  the  18th  of  November. 

Now  the  fact  is,  the  1 1th  of  November  last  was  Friday,  and  the 
register  of  the  National  Hotel  bears  witness  that  Mrs.  Hudspeth  is  not 
mistaken-;  because  her  language  is,  that  Booth  said  he  would  leave  for 
Washington  day  after  to-morrow,  which  would  be  Sunday,  the  1 3th, 
and  if  in  the  evening,  would  bring  him  to  Washington  on  Monday,  the 
14th  of  November,  the  day  on  which,  the  register  shows,  he  did  re- 
turn to  the  National  Hotel.  As  to  the  improbability  which  the  gen- 
tleman raises,  on  the  conversation  happening  in  a  street  car,  crowded 
with  people,  there  was  nothing  that  transpired,  although  the  conver- 
sation was  earnest,  which  enabled  the  witness,  or  could  have  enabled 
any  one,  in  the  absence  of  this  letter,  or  of  the  subsequent  conduct 
of  Booth,  to  form  the  least  idea  of  the  subject-matter  of  their  conver- 
sation. The  gentleman  does  not  deal  altogether  fairly  in  his  remarks 
touching  the  letter  of  General  Dix;  because,  upon  a  careful  examina- 
tion of  the  letter,  it  will  be  found  that  he  did  not  form  any  such  judg- 
ment as  that  it  was  a  hoax  for  the  Sunday  Mercury,  but  he  took  care 
to  forward  it  to  the  Department,  and  asked  attention  to  it;  when,  as 
appears  by  the  testimony  of  the  Assistant  Secretary  of  War,  Mr. 
Dana,  the  letter  was  delivered  to  Mr.  Lincoln,  who  considered  it  im- 
portant enough  to  indorse  it  with  the  word  "Assassination,"  and  file 
it  in  his  office,  where  it  was  found  after  the  commission  of  this  crime, 
and  brought  into  this  court  to  bear  witness  against  his  assassins. 

Although  this  letter  would  imply  that  the  assassination  spoken  of 
was  to  take  place  speedily,  yet  the  party  was  to  bide  Ms  time.  Though 
he  had  entered  into  the  preliminary  arrangements  in  Canada,  al- 
though conspirators  had  doubtless  agreed  to  co-operate  with  him  in 
the  commission  of  the  crime,  and  lots  had  been  cast  for  the  chief  part  in 
the  bloody  drama,  yet  it  remained  for  him,  as  the  leader  and  principal 
of  the  hired  assassins,  by  whose  hand  their  employers  were  to  strike 


75 

the  murderous  blow,  to  collect  about  him  and  bring  to  Washington 
such  persons  as  would  be  willing  to  lend  themselves  for  a  price  to 
the  horrid  crime  and  likely  to  give  the  necessary  aid  and  support  in 
its  consummation.  The  letter  declares  that  Abraham  Lincoln  must  die, 
and  now,  meaning  as  soon  as  the  agents  can  be  employed  and  the 
work  done.  To  that  end  you  will  bide  your  time.  Bat,  says  the  gen- 
tleman, it  could  not  have  been  the  same  conspiracy  charged  here  to 
which  this  letter  refers.  Why  not?  It  is  charged  here  that  Booth 
with  the  accused  and  others  conspired  to  kill  and  murder  Abraham 
Lincoln — that  is  precisely  the  conspiracy  disclosed  in  the  letter. 
Granted  that  the  parties  on  trial  had  not  then  entered  into  the  com- 
bination; if  they  at  any  time  afterward  entered  into  it  they  became 
parties  to  it,  and  the  conspiracy  was  still  the  same.  But,  says  the  gen- 
tleman, the  words  of  the  letter  imply  that  the  conspiracy  was  to  be 
executed  within  the  fortnight.  Booth  is  directed,  by  the  name  of 
Louis,  to  meet  the  writer  within  the  fortnight.  It  by  no  means  follows 
that  he  was  to  strike  within  the  fortnight,  because  he  was  to  meet 
his  co-conspirator  within  that  time,  and  any  such  conclusion  is  ex- 
cluded by  the  words  ' '  Bide  your  time. ' '  Even  if  the  conspiracy  was  to 
be  executed  within  the  fortnight,  and  was  not  so  executed,  and  the 
same  party,  Booth,  afterwards  by  concert  and  agreement  with  the  ac- 
cused and  others  did  execute  it  by  "striking  sure"  and  killing  the 
President,  that  act,  whenever  done,  would  be  but  the  execution  of  the 
same  conspiracy.  The  letter  is  conclusive  evidence  of  so  much  of  this 
conspiracy  as  relates  to  the  murder  of  President  Lincoln.  As  Booth 
was  to  do  anything  but  fail,  he  immediately  thereafter  sought  out 
the  agents  to  enable  him  to  strike  sure,  and  execute  all  that  he  had 
agreed  with  Davis  and  his  co-confederates  in  Canada  to  do — to  mur- 
der the  President,  the  Secretary  of  State,  the  Vice  President,  Gen- 
eral Grant,  and  Secretary  Stanton. 

Even  Booth's  co-conspirator,  Payne,  now  on  his  trial,  by  his  defence 
admits  all  this,  and  says  Booth  had  just  been  to  Canada,  ' '  was  filled 
with  a  mighty  scheme,  and  was  lying  in  wait  for  agents."  Booth 
asked  the  co-operation  of  the  prisoner  Payne,  and  said :  "I  will  give 
you  as  much  money  as  you  want;  but  first  you  must  swear  to  stick 
by  me.  It  is  in  the  oil  business."  This  you  are  told  by  the  accused 
was  early  in  March  last.  Thus  guilt  bears  witness  against  itself. 

We  find  Booth  in  New  York  in  November,  December,  and  January, 
urging  Chester  to  enter  into  this  combination,  assuring  him  that  there 
was  money  in  it;  that  they  had  "friends  on  the  other  side;"  that  if 
he  would  only  participate  in  it  he  would  never  want  for  money  while 


76 

he  lived,  and  all  that  was  asked  of  him  was  to  stand  at  and  open  the 
back  door  of  Ford's  theatre.  Booth,  in  his  interviews  with  Chester, 
confesses  that  he  is  luithout  money  himself]  and  allows  Chester  to  re- 
imburse him  the  $50  which  he  (Booth)  had  transmitted  to  him  in  a  letter 
for  the  purpose  of  paying  his  expenses  to  Washington  as  one  of  the 
parties  to  this  conspiracy.  Booth  told  him,  although  he  himself  was 
penniless,  ' '  there  is  money  in  this — we  have  friends  on  the  other  side ;' ' 
and  if  you  will  but  engage,  I  will  have  three  thousand  dollars  de- 
posited at  once  for  the  use  of  your  family. 

Failing  to  secure  the  services  of  Chester,  because  his  soul  recoiled 
with  abhorrence  from  the  foul  work  of  assassination  and  murder,  he 
found  more  willing  instruments  in  others  whom  he  gathered  about 
him.  Men  to  commit  the  assassinations,  horses  to  secure  speedy 
and  certain  escape,  were  to  be  provided,  and  to  this  end  Booth, 
with  an  energy  worthy  of  a  better  cause,  applies  himself.  For  this 
latter  purpose  he  told  Chester  he  had  already  expended  $5, 000.  In 
the  latter  part  of  November,  1864,  he  visits  Charles  county,  Mary- 
land, and  is  in  company  with  one  of  the  prisoners,  Dr.  Samuel  A. 
Mudd,  with  whom  he  lodged  over  night,  and  through  whom  he  pro- 
cures of  Gardner  one  of  the  several  horses  which  were  at  his  dis- 
posal, and  used  by  him  and  his  co-conspirators  in  Washington  on  the 
night  of  the  assassination. 

Some  time  in  January  last,  it  is  in  testimony,  that  the  prisoner 
Mudd  introduced  Booth  to  John  H.  Surratt;  and  the  witness  Weich- 
mann  ;  that  Booth  invited  them  to  the  National  Hotel  ;  that  when 
there,  in  the  room  to  which  Booth  took  them,  Mudd  went  out  into  the 
passage,  called  Booth  out  and  had  a  private  conversation  with  him, 
leaving  the  witness  and  Surratt  in  the  room.  Upon  their  return  to 
the  room  Booth  went  out  with  Surratt,  and  upon  their  coming  in  all 
three,  Booth,  Surratt,  and  Samuel  A.  Mudd,  went  out  together  and 
had  a  conversation  in  the  passage,  leaving  the  witness  alone.  Up  to 
the  time  of  this  interview  it  seems  that  neither  the  witness  nor  Sur- 
ratt had  any  knowledge  of  Booth,  as  they  were  then  introduced  to 
him  by  Dr.  Mudd.  Whether  Surratt  had  in  fact  previously  known 
Booth  it  is  not  important  to  inquire.  Mudd  deemed  it  necessary, 
perhaps  a  wise  precaution,  to  introduce  Surratt  to  Booth  ;  he  also 
deemed  it  necessary  to  have  a  private  conversation  with  Booth  shortly 
afterwards,  and  directly  upon  that  to  have  a  conversation  together 
with  Booth  and  Surratt  alone.  Had  this  conversation,  no  part  ot 
which  was  heard  by  the  witness,  been  perfectly  innocent,  it  is  not  to 
be  presumed  that  Dr.  Mudd,  who  was  an  entire  stranger  to  Weich- 


77 

niann,  would  have  deemed  it  necessary  to  hold  the  conversation  se- 
cretly, nor  to  have  volunteered  to  tell  the  witness,  or  rather  pre- 
tend to  tell  him,  what  the  conversation  was  ;  yet  he  did  say  to  the 
witness,  upon  their  return  to  the  room,  by  way  of  apology,  I  suppose, 
for  the  privacy  of  the.  conversation,  that  Booth  had  some  private 
business  with  him,  and  wished  to  purchase  his  farm.  This  •  silly  de- 
vice, as  is  often  the  case  in  attempts  at  deception,  failed  in  the  exe- 
cution ;  for  it  remains  to  be  shown  how  the  fact  that  Mudd  had  pri- 
vate business  with  Booth,  and  that  Booth  wished  to  purchase  ,his 
farm,  made  it  at  all  necessary  or  even  proper  that  they  should  both 
volunteer  to  call  out  Surratt,  who  up  to  that  moment  was  a  stranger 
to  Booth.  What  had  Surratt  to  do  with  Booth's  purchase  of  Mudd's 
farm  ?  And  if  it  was  necessary  to  withdraw  and  talk  by  themselves 
secretly  about  the  sale  of  the  farm,  why  should  they  disclqse  the  fact 
to  the  very  man  from  whom  they  had  concealed  it  ? 

Upon  the  return  of  these  three  parties  to  the  room,  they  seated 
themselves  at  a  table,  and  upon  the  back  of  an  envelope  Booth  traced 
lines  with  a  pencil,  indicating,  as  the  witness  states,  the  direction  of 
roads.  Why  was  this  done  ?  As  Booth  had  been  previously  in  that 
section  of  country,  as  the  prisoner  in  his  defence  has  taken  great 
pains  to  show,  it  was  certainly  not  necessary  to  anything  connected 
with  the  purchase  of  Mudd's  farm  that  at  that  time  he  should  be 
indicating  the  direction  of  roads  to  or  from  it;  nor  is  it  made  to  ap- 
pear, by  anything  in  this  testimony,  how  it  comes  that  Surratt,  as  the 
witness  testifies,  seemed  to  be  as  much  interested  in  the  marking  out 
of  these  roads  as  Mudd  or  Booth.  It  does  not  appear  that  Surratt 
was  in  anywise  connected  with  or  interested  in  the  sale  of  Mudd  s 
farm.  From  all  that  has  transpired  since  this  meeting  at  the  hotel, 
H  would  seem  that  this  plotting  the  roads  was  intended,  not  so  much 
to  show  the  road  to  Mudd's  farm,  as  to  point  out  the  shortest  and 
safest  route  for  flight  from  the  capital,  by  the  houses  of  all  the  parties 
to  this  conspiracy,  to  their  "friends  on  the  other  side." 

But,  says  the  learned  gentleman,  (Mr.  Ewing,)  in  his  very  able  argu- 
ment in  defence  of  this  prisoner,  why  should  Booth  determine  that 
his  flight  should  be  through  Charles  county  ?  The  answer  must  be 
obvious,  upon  a  moment's  reflection,  to  every  man,  and  could  not 
possibly  have  escaped  the  notice  of  the  counsel  himself,  but  for  the 
reason  that  his  zeal  for  his  client  constrained  him  to  overlook  it.  It 
was  absolutely  essential  that  this  murderer  should  have  his  co- conspira- 
tors at  convenient  points  along  his  route,  and  it  does  not  appear  in 
evidence  that  by  the  route  to  his  friends,  who  had  then  fled  from 


78 

Richmond,  which  the  gentleman  (Mr.  Ewing)  indicates  as  the  more 
direct,  but  of  which  there  is  not  the  slightest  evidence  whatever, 
Booth  had  co-conspirators  at  an  equal  distance  from  Washington. 
The  testimony  discloses,  further,  that  on  the  route  selected  by  him 
for  his  flight  there  is  a  large  population  that  would  be  most  likely  to 
favor  and  aid  him  in  the  execution  of  his  wicked  purpose,  and  in 
making  his  escape.  But  it  is  a  sufficient  answer  to  the  gentleman's 
question,  that  Booth's  co-conspirator  Mudd  lived  in  Charles  county. 

To  return  to  the  meeting  at  the  hotel.  In  the  light  of  other  facts 
in  this  case,  it  must  become  clear  to  the  court  that  this  secret  meet- 
ing between  Booth,  Surratt,  and  Mudd  was  a  conference  looking  to 
the' execution  of  this  conspiracy.  It  so  impressed  the  prisoner — it  so 
impressed  his  counsel,  that  they  deemed  it  necessary  and  absolutely 
essential  to  their  defence  to  attempt  to  destroy  the  credibility  of  the 
witness  Weichmann. 

I  may  say  here,  in  passing,  that  they  have  not  attempted  to  impeach 
his  general  reputation  for  truth  by  the  testimony  of  a  single  witness, 
nor  have  they  impeached  his  testimony  by  calling  a  single  witness  to 
discredit  one  material  fact  to  which  he  has  testified  in  this  issue. 
Failing  to  find  a  breath  of  suspicion  against  Weichmann' s  character, 
or  to  contradict  a  single  fact  to  which  he  testified,  the  accused  had  to 
fly  to  the  last  resort,  an  alibi,  and  very  earnestly  did  the  learned 
counsel  devote  himself  to  the  task. 

It  is  not  material  whether  this  meeting  in  the  hotel  took  place  on 
the  23d  of  December  or  in  January.  But,  says  the  counsel,  it  was 
after  the  commencement  or  close  of  the  Congressional  holiday.  That 
is  not  material ;  but  the  concurrent  resolution  of  Congress  shows 
that  the  holiday  commenced  on  the  22d  December,  the  day  before 
the  accused  spent  the  evening  in  Washington.  The  witness  is  not 
certain  about  the  date  of  this  meeting.  The  material  fact  is,  did  this 
meeting  take  place — either  on  the  23d  of  December  or  in  January  last  ? 
Were  the  private  interviews  there  held,  and  was  the  apology  made, 
as  detailed,  by  Mudd  and  Booth,  after  the  secret  conference,  to  the 
witness  ?  That  the  meeting  did  take  place,  and  that  Mudd  did  ex- 
plain that  these  secret  interviews,  with  Booth  first,  and  with  Booth 
and  Surratt  directly  afterward,  had  relation  to  the  sale  of  his  farm, 
is  confessedly  admitted  by  the  endeavor  of  the  prisoner,  through  his 
counsel,  to  show  that  negotiations  had  been  going  on  between  Booth 
and  Mudd  for  the  sale  of  Mudd's  farm.  If  no  such  meeting  was  held, 
if  no  such  explanation  was  made  by  Mudd  to  Weichmann,  can  any 
man  for  a  moment  believe  that  a  witness  would  have  been  called  here 


79 

to  give  any  testimony  about  Booth  having  negotiated  for  Mudd's  farm  ? 
"What  conceivable  connexion  has  it  with  this  case,  except  to  show 
that  Mudd's  explanation  to  Weichmann  for  his  extraordinary  conduct 
was  in  exact  accordance  with  the  fact  ?  Or  was  this  testimony  about 
the  negotiations  for  Mudd's  farm  intended  to  show  so  close  an  inti- 
macy and  intercourse  with  Booth  that  Mudd  could  not  fail  to  recog- 
nize him  when  he  came  flying  for  aid  to  his  house  from  the  work  of 
assassination?  It  would  be  injustice  to  the  able  counsel  "to  suppose 
that. 

I  have  said  that  it  was  wholly  immaterial  whether  -this  conversa- 
tion took  place  on  the  23d  of  December  or  in  January  ;'  it  is  in  evi? 
dence  that  in  both  those  months  Booth  was  at  the  National  Hotel  ; 
that  he  occupied  a  room  there  ;  that  he  arrived  there  on  the  22d 
and  was  there  on  the  23d  of  December  last,  and  also  on  the  12th  day 
of  January.  The  testimony  of  the  witness  is,  that  Booth  said 
he  had  just  come  in.  Suppose  this  conversation  took  place  in 
December,  on  the  evening  of  the  23d,  the  time  when  it  is  proved  by 
J.  T.  Mudd,  the  witness. for  the  accused,  that  he,  in  company  with 
Samuel  A.  Mudd,  spent  the  night  in  Washington  city.  Is  there  any- 
thing in  the  testimony  of  that  or  any  other  witness  to  show  that  the 
accused  did  not  have  and  could  not  have  had  an  interview  with  Booth 
on  that  evening?  J.  T.  Mudd  testifies  that  he  separated  from'  the 
prisoner,  Samuel  A.  Mudd,  at  the  National  Hotel  early  in  the  evening 
of  that  day,  and  did  not  meet  him  again  until  the  accused  came  in  for 
the  night  at  the  Pennsylvania  House,  where  he  stopped.  Where  was 
Dr.  Samuel  A.  Mudd  during  this  interval  ?  What  does  his  witness  know 
about  him  during  that  time  ?  How  can  he  say  that  Dr.  Mudd  did  not 
go  up  on  Seventh  street  in  company  with  Booth,  then  at  the  National ; 
that  he  did  not  on  Seventh  street  meet  Surratt  and  Weichmann  ;  that 
he  did  not  return  to  the  National  Hotel ;  that  he  did  not  have  this  in- 
terview, and  afterwards  meet  him,  the  witness,  as  he  testifies,  at  the 
Pennsylvania  House  ?  Who  knows  that  the  Congressional  holiday 
had  not  in  fact  commenced  on  that  day  ?  What  witness  has  been 
called  to  prove  that  Booth  did  not  on  either  of  those  occasions  occupy 
the  room  that  had  formerly  been  occupied  by  a  member  of  Congress, 
who  had  temporarily  vacated  it.,  leaving  his  books  there  ?  Weich- 
mann, I  repeat,  is  not  positive  as  to  the  date,  he  is  only  positive  as 
to  the  fact  ;  and  he  disclosed  voluntarily,  to  this  court,  that  the  date 
could  probably  be  fixed  by  a  reference  to  the  register  of  the  Penn- 
sylvania House  ;  that  register  cannot,  of  course,  be  conclusive  of 
whether  Mudd  was  there  in  January  or  not,  for  the  very  good  reason 


that  the  proprietor  admits  that  he  did  not  know  Samuel  A.  Mudd, 
therefore  Mudd  might  have  registered  by  any  other  name.  Weich- 
mann  does  not  pretend  to  know  that  Mudd  had  registered  at  all. 
If  Mudd  was  here  in  January,  as  a  party  to  this  conspiracy, 
it  is  not  at  all  unlikely  that,  if  he  did  register  at  that  time 
in  the  presence  of  a  man  to  whom  he  was  wholly  unknown, 
his  kinsman  not  then  being  with  him,  he  would  register  by  a  false 
name.  But  if  the  interview  took  place  in  December,  the  testimony 
of  Weichmann  bears  as  strongly  against  the  accused  as  if  it  had  hap- 
pened in  January.  Weichmann  says  he  does  not  know  what  time  was 
occupied  in  this  interview7  at  the  National  Hotel;  that  it  probably 
lasted  twenty  minutes;  that,  after  the  private  interviews  between 
Mudd  and  Surrattand  Booth,  which  were  not  of  very  long  duration,  had 
terminated,  the  parties  went  to  the  Pennsylvania  House,  where  Dr. 
Mudd  had  rooms,  and  after  sitting  together  in  the  common  sitting- 
room  of  the  hotel,  they  left  Dr.  Mudd  there  about  10  o'clock  p.  rn., 
who  remained  during  the  night.  Weichmann' s  testimony  leaves 
no  doubt  that  this  meeting  on  Seventh  street  and  interview  at  the 
National  took  place  after  dark,  and  terminated  before  or  about  10 
o'clock  p.  m.  His  own  witness,  J.  T.  Mudd,  after  stating  that  he 
separated  from  the  accused  at  the  National  Hotel,  says  after  he  had 
got  through  a  conversation  with  a  gentleman  of  his  acquaintance,  he 
walked  down  the  Avenue,  went  to  several  clothing  stores,  and  "after 
a  while"  walked  round  to  the  Pennsylvania  House,  and  "very  soon 
after"  he  got  there  Dr.  Mudd  came  in,  and  they  went  to  bed 
shortly  afterwards.  What  time  he  spent  in  his  "walk  alone"  on  the 
Avenue,  looking  at  clothing;  what  period  he  embraces  in  the  terms 
"after  awhile,"  when  he  returned  to  the  Pennsylvania  House,  and 
"soon  after"  which  Dr.  Mudd  got  there,  the  witness  does  not 
disclose.  Neither  does  be  intimate,  much  less  testify,  that  he  saw 
Dr.  Mudd  when  he  first  entered  the  Pennsylvania  House  on 
that  night  after  their  separation.  How  does  he  know  that  Booth  and 
Surrat  and  Weichmann  did  not  accompany  Samuel  A.  Mudd  to  that 
house  that  evening?  How  does  he  know  that  the  prisoner  and 
those  persons  did  not  converse  together  some  time  in  the  sitting- 
room  of  the  Pennsylvania  Hotel  ?  Jeremiah  Mudd  has  not  testified 
that  he  met  Doctor  Mudd  in  that  room,  or  that  he  was  in  it  him- 
self. He  has,  however,  sworn  to  the  fact,  which  is  disproved  by  no 
one,  that  the  prisoner  was  separated  from  him  long  enough  that 
evening  to  have  had  the  meeting  with  Booth,  Surratt,  and  Weich- 
mann, and  the  interviews  in  the  National  Hotel,  and  at  the  Pennsyl- 


vania  House,  to  wnich  Weichmann  has  testified?  Who  is  there  to 
disprove  it?  Of  what  importance  is  it  whether  it  was  on  the  23d  day 
of  December  or  in  January?  How  does  that  aifect  the  credibility  of' 
Weichmann?  He  is  a  man,  as  I  have  before  said,  against  whose 
reputation  for  truth  and  good  conduct  they  have  not  been1  able  to 
bring  one  witness.  If  this  meeting  did  by  possibility  take  place  that 
night,  is  there  anything  to  render  it  improbable  that  Booth,  and  Mudd, 
and  Surratt  did  have  the  conversation  at  the  National  Hotel  to  which 
Weichmann  testifies  ?  Of  what  avail,  therefore,  is  the  attempt  to 
prove  that  Mudd  was  not  here  during  January,  if  it  was  clear  that  he 
was  here  on  the  23d  of  December,  18G4,  and  had  this  conversation 
with  Booth  ?  That  this  attempt  to  prove  an  alibi  during  January  has 
failed,  is  quite  as  clear  as  is  the  proof  of  the  fact  that  the  prisoner 
was  here  on  the  evening  of  the  23d  of  December,  and  present  in  the 
National  Hotel,  where  Booth  stopped.  The  fact  that  the  prisoner, 
Samuel  A.  Mudd,  went  with  J.  T.  Mudd  on  that  evening  to  the  Na- 
tional Hotel,  and  there  separated  from  him,  is  proved  by  his  own 
witness,  J.  T.  Mudd;  and  that  he  did  not  rejoin  him  until  they  retired 
to  bed  in  the  Pennsylvania  House  is  proved  by  the  same  witness,  and 
contradicted  by  nobody.  Does  any  one  suppose  there  would  have 
been  such  assiduous  care  to  prove  that  the  prisoner  was  with  his 
kinsman  all  the  time  on  the  23d  of  December  in  Washington,  if  they 
had  not  known  that  Booth  was  then  at  the  National  Hotel,  and  that  a 
meeting  of  the  prisoner  with  Booth,  Surratt,  and  Weichmann  on  that 
day  would  corroborate  and  confirm  Weichmann' s  testimony  in  every 
material  statement  he  made  concerning  that  meeting  ? 

The  accused  having  signally  failed  to  account  for  his  absence  after 
he  separated  from  his  witness,  J.  T.  Mudd,  early  in  the  evening  of 
the  23d  of  December,  at  the  National  Hotel,  until  they  had  again 
met  at  the  Pennsylvania  House,  when  they  retired  to  rest,  he  now 
attempts  to  prove  an  alibi  as  to  the  month  of  January.  In  this  he 
has  failed,  as  he  failed  in  the  attempt  to  show  that  he  could  not 
have  met  Booth,  Surratt,  and  Weichmann  on  the  23d  of  December. 

For  this  purpose  the  accused  calls  Betty  Washington.  She  had 
been  at  Mudd's  house  every  night  since  the  Monday  after  Christmas 
last,  except  when  here  at  court,  and.  says  that  the  prisoner,  Mudd, 
has  only  been  away  from  home  three  nights  during  that  time.  This 
witness  forgets  that  Mudd  has  not  been  at  home  any  night  or  day 
since  this  court  assembled.  Neither  does  she  account  for  the  three 
nights  in  which  she  swears  to  his  absence  from  home.  First,  she 
GB 


82 

says  he  went  to  Gardner's  party  ;  second,  he  went  to  Giesboro, 
the  a  to  Washington.  She  does  not  know  in  what  month  he  was 
away,  the  second  time,  all  night.  She  only  knows  where  he  went, 
from  what  he  and  his  wife  said,  which  is  not  evidence;  but  she  does 
testify  that  when  he  left  home  and  was  absent  over  night,  the  second 
time,  it  was  about  two  or  three  weeks  after  she  came  to  his  house, 
which  would,  if  it  were  three  weeks,  make  it  just  about  the  15th  of 
January,  1865;  because  she  swears  she  came  to  his  house  on  the  first 
Monday  after  Christmas  last,  which  was  the  26th  day  of  December; 
so  that  the  15th  of  January  would  be  three  weeks,  less  one  day,  from 
that  time;  and  it  might  have  been  a  week  earlier  according  to  her 
testimony,  as,  also,  it  might  have  been  a  week  earlier,  or  more,  by 
Weichmann's  testimony,  for  he  is  not  positive  as  to  the  time.  What 
I  have  said  of  the  register  of  the  Pennsylvania  House,  the  headquar- 
ters of  Mudd  and  Atzerodt,  I  need  not  here  repeat.  That  record 
proves  nothing,  save  that  Dr.  Mudd  was  there  on  the  23d  of  Decem- 
ber, which,  as  we  have  seen,  is  a  fact,  along  with  others,  to  show 
that  the  meeting  at  the  National  then  took  place.  I  have  also  called 
the  attention  of  the  court  to  the  fact  that  if  Mudd  was  at  that  house 
again  in  January,  and  did  not  register  his  name,  that  fact  proves 
nothing;  or,  if  he  did,  the  register  only  proves  that  he  registered 
falsely;  either  of  which  facts  might  have  happened  without  the 
knowledge  of  the  witness  called  by  the  accused  from  that  house,  who 
does  not  know  Samuel  A.  Mudd  personally. 

The  testimony  of  Henry  L.  Mudd,  his  brother,  in  support  of  this 
alibi,  is,  that  the  prisoner  was  in  Washington  on  the  23d  of  March, 
and  on  the  10th  of  April,  four  days  before  the  murder  !  But  he  does 
not  account  for  the  absent  night  in  January,  about  which  Betty 
Washington  testifies.  Thomas  Davis  was  called  for  the  same  pur- 
pose, but  stated  that  he  was  himself  absent  one  night  in  January, 
aJ;er  the  9th  of  that  month,  and  he  could  not  say  whether  Mudd  was 
there  on  that  night  or  not.  He  does  testify  to  Mudd's  absence  over 
night  three  times,  and  fixes  one  occasion  on  the  night  of  the  26th  of 
January.  In  consequence  of  his  o\vn  absence  one  night  in  January, 
this  witness  cannot  account  for  the  absence  of  Mudd  on  the  night 
referred  to  by  Betty  Washington. 

This  matter  is  entitled  to  no  further  attention.  It  can  satisfy  no 
one,  and  the  burden  of  proof  is  upon  the  prisoner  to  prove  that  he 
was  not  in  Washington  in  January  last.  How  can  such  testimony 
convince  any  rational  man  that  Mudd  was  not  here  in  January,  against 
the  evidence  of  an  unimpeached  witness,  who  swears  that  Samuel  A. 


83 

Mudd  was  in  Washington  in  the  month  of  Januar}r?     Who  that  has 
been  examined  here  as  a  witness  knows  that  he  was  not  ? 

The  Rev.  Mr.  Evans  swears  that  he  saw  him  in  Washington  last 
winter,  and  that  at  the  same  time  he  saw  Jarboe,  the  one  coming  out 
of,  and  the  other  going  into,  a  house  on  H  street,  which  he  was  in- 
formed on  inquiry  was  the  house  of  Mrs.  Snrratt.  Jarboe  is  the 
only  witness  called  to  contradict  Mr.  Evans,  and  he  leaves  it  in  extreme 
doubt  whether  he  does  not  corroborate  him,  as  he  swears  that  he  was 
here  himself  last  winter  or  fall,  but  cannot  state  exactly  the  time. 
Jarboe' s  silence  on  questions  touching  his  own  credibility  leaves  no 
room  for  any  one  to  say  that  his  testimony  could  impeach  Mr.  Evans, 
whatever  he  might  swear. 

Miss  Anna  H.  Surratt  is  also  called  for  the  purpose  of  impeaching 
Mr.  Evans.  It  is  sufficient  to  say  of  her  testimony  on  that  point  that 
she  swears  negatively  only — that  she  did  not  see  either  of  the  persons 
named  at  her  mother's  house.  This  testimony  neither  disproves,  nor 
does  it  even  tend  to  disprove,  the  fact  put  in  issue  by  Mr.  Evans..  No 
one  will  pretend,  whatever  the  form  of  her  expression  in  giving  her 
testimony,  that  she  could  say  more  than  that  she  did  not  know  the 
fact,  as  it  was  impossible  that  sfie  could  know  who  was,  or  who  was 
not,  at  her  mother's  house,  casually,  at  a  period  so  remote.  It  is  not 
my  purpose,  neither  is  it  needful  here,  to  question  in  any  way  the 
integrity  of  this  young  woman. 

It  is  further  in  testimony  that  Samuel  A.  Mudd  was  here  on  the  3d 
day  of  March  last,  the  day  preceding  the  inauguration,  when  Booth 
was  to  strike  the  traitorous  blow ;  and  it  was,  doubtless,  only 
by  the  interposition  of  that  God  who  stands  within  the  shadow 
and  keeps  watch  above  his  own,  that  the  victim  of  this  conspiracy 
was  spared  that  day  from  the  assassin's  hand  that  he  might  complete 
his  work  and  see  the  salvation  of  his  country  in  the  fall  of  Richmond 
and  the  surrender  of  its  great  army.  Dr.  Mudd  was  here  on  that 
day  (the  3d.  of  March)  to  abet,  to  encourage,  to  nerve  his  co-conspira- 
tor for  the  commission  of  this  great  crime.  He  was  carried  away  by 
the  awful  purpose  which  possessed  him,  and  rushed  into  the  room  of 
Mr.  Norton  at  the  National  Hotel  in  search  of  Booth,  exclaiming  ex- 
citedly: "I'm  mistaken;  I  thought  this  was  Mr.  Booth's  room."  He 
is  told  Mr.  Booth  is  above,  on  the  next  floor.  He  is  followed  by  Mr. 
Norton,  because  of  his  rude  and  excited  behavior,  and  being  fol- 
lowed, conscious  of  his  guilty  errand,  he  turns  away,  afraid  of  him- 
self and  afraid  to  be  found  in  concert  with  his  fellow  confederate. 


84 

Mr.  Norton  identifies  the  prisoner,  and  has  no  doubt  that  Samuel  A. 
Mudd  is  the  man. 

The  Rev.  Mr.  Evans  also  swears  that,  after  the  1st  and  before 
the  4th  day  of  March  last,  he  is  certain  that  within  that  time,  and  on 
the  2d  or  3d  of  March,  he  saw  Dr.  Mudd  drive  into  Washington  city. 
The  endeavor  is  made  by  the  accused,  in  order  to  break  down  this 
witness,  by  proving  another  alibi.  The  sister  of  the  accused,  Miss 
Fanny  Mudd,  is  called.  She  testifies  that  she  saw  the  prisoner  at 
breakfast  in  her  father's  house,  on  the  2d  of  March,  about  5  o'clock 
in  the  morning,  and  not  again  until  the  3d  of  March  at  noon.  Mrs. 
Emily  Mudd  swears  substantially  to  the  same  statement.  Betty 
Washington,  called  for  the  accused,  swears  that  he  was  at  home  all 
day  at  work  with  her  on  the  2d  of  March,  and  took  breakfast  at  home. 
Frank  Washington  swears  that  Mudd  was  at  home  all  day  ;  that  he 
saw  him  when  he  first  came  out  in  the  morning  about  sunrise  from 
his  own  house,  and  knows  that  he  was  there  all  day  with  them. 
Which  is  correct,  the  testimony  of  his  sisters  or  the  testimony  of 
his  servants?  The  sisters  say  that  he  was  at  their  father's  house  for 
breakfast  on  the  morning  of  the  2d  of  March  ;  the  servants  say  he 
was  at  home  for  breakfast  with  them  on  that  day.  If  this  testimony 
is  followed,  it  proves  one  alibi  too  much.  It  is  impossible,  in  the 
nature  of  things,  that  the  testimony  of  all  these  four  witnesses  can 
be  true. 

Seeing  this  weakness  in  the  testimony  brought  to  prove  this  second 
alibi,  the  endeavor  is  next  made  to  discredit  Mr.  Norton  for  truth  ; 
and  two  witnesses,  not  more,  are  called,  who  testify  that  his  reputa- 
tion for  truth  has  suffered  by  contested  litigation  between  one  of  the 
impeaching  witnesses  and  others.  Four  witnesses  are  called,  who 
testify  that  Mr.  Norton's  reputation  for  truth  is  very  good  ;  that  he 
is  a  man  of  high  character  for  truth,  and  entitled  to  be  believed 
whether  he  speaks  under  the  obligation  of  an  oath  or  not.  The  late 
Postmaster  General,  Hon.  Horatio  King,  not  only  sustains  Mr.  Nor- 
ton as  a  man  of  good  reputation  for  truth,  but  expressly  corroborates 
his  testimony,  by  stating  that  in  March  last,  about  the  4th  of  March, 
Mr.  Norton  told  him  the  same  fact  to  which  he  swears  here  :  that  a 
man  came  into  his  room  under  excitement,  alarmed  his  sister,  was 
followed  out  by  himself,  and  went  down  stairs  instead  of  going  up  ; 
and  that  Mr.  Norton  told  him  this  before  the  assassination,  and  about 
the  time  of  the  inauguration.  What  motive  had  Mr.  Norton  at  that 
time  to  fabricate  this  statement  ?  It  detracts  nothing  from  his  testi- 
mony that  he  did  not  at  that  time  mention  the  name  of  this  man  to 


85 

his  friend,  Mr.  King  ;  because  it  appears  from  his  testimony — and 
there  is  none  to  question  the  truthfulness  of  his  statement — that  at 
that  timo  he  did  not  know  his  name.  Neither  does  it  take  from  the 
force  of  this  testimony,  that  Mr.  Norton  did  not,  in  communicating 
this  matter  to  Mr.  King,  make  mention  of  Booth's  name  ;  because 
there  was  nothing  in  the  transaction,  at.  the  time,  he  being  ignorant 
of  the  name  of  Mudd,  and  equally  ignorant  of  the  conspiracy  between 
Muddand  Booth,  to  give  the  least  occasion  for  any  mention  of  Booth 
or  of  the  transaction  further  than  as  he  detailed  it.  With  such  cor- 
roboration,  who  can  doubt  the  fact  that  Mudd  did  enter  the  'room  of 
Mr.  Norton,  and  was  followed  by  him,  on  the  3d  of  March  last?  Can 
he  be  mistaken  in  the  man  ?  Whoever  looks  at  the  prisoner  care- 
fully once  will  be  sure  to  recognize  him  again. 

For  the  present  I  pass  from  the  consideration  of  the  testimony 
showing  Dr.  Mudd' 8  connection  with  Booth  in  this  conspiracy,  with 
the  remark  that  it  is  in  evidence,  and  I  think  established,  both  by  the 
testimony  adduced  by  the  prosecution  and  that  by  the  prisoner, 
that  since  the  commencement  of  this  rebellion  John  H.  Surratt  vis- 
ited the  prisoner's  house  ;  that  he  concealed  Surratt  and  other  rebels 
and  traitors  in  the  woods  near  his  house,  where  for  several  days  ho 
furnished  them  with  food  and  bedding;  that  the  shelter  of  the  woods 
by  night  and  by  day  was  the  only  shelter  that  the  prisoner  dare  furnish 
these  friends  of  his;  that  in  November  Booth  visited  him  and  remained 
overnight;  that  he  accompanied  Booth  at  that  time  to  Gardner's, 
from  whom  he  purchased  one  of  the  horses  used  on  the  night  of  the 
assassination  to  aid  the  escape  of  one  of  his  confederates;  that  the 
prisoner  had  secret  interviews  with  Booth  and  Surratt,  as  sworn  to  by 
the  witness  Weichmann,  in  the  National  Hotel,  whether  on  the  23d 
of  December  or  in  January  is  a  matter  of  entire  indiiference;  that  he 
rushed  into  Mr.  Norton's  room  on  the  3d  of  March  in  search  of  Booth; 
and  that  he  was  here  again  on  the  10th  of  April,  four  days  before  the 
murder  of  the  President.  Of  his  conduct  after  the  assassination  of 
the  President,  which  is  confirmatory  of  all  this — his  conspiring  with 
Booth  and  his  sheltering,  concealing,  and  aiding  the  flight  of  his  co-con- 
spirator, this  felon  assassin — I  shall  speak  hereafter,  leaving  him  for  the 
present  with  the  remark  that  the  attempt  to  prove  his  character  has 
resulted  in  showing  him  in  sympathy  with  the  rebellion,  so  cruel  that 
he  shot  one  of  his  slaves  and  declared  his  purpose  to  send  several  of 
them  to  work  on  the  rebel  batteries  in  Richmond. 

What  others,  besides  Samuel  A.  Mudd  and  John  H.  Surratt  and 
Lewis  Payne,  did  Booth,  after  his  return  from  Canada,  induce  to  join 


86 

him  in  this  conspiracy  to  murder  the  President,  the  Vice  President, 
the  Secretary  of  State,  and  the  Lieutenant  General,  with  the  intent 
thereby  to  aid  the  rebellion  and  overthrow  the  government  and  laws 
of  the  United  States  ? 

On  the  10th  of  February  the  prisoners  Arnold  and  O'Laughlin  came 
to  Washington  and  took  rooms  in  the  house  of  Mrs.  Vantyne;  were 
armed;  were  there  visited  frequently  by  John  Wilkes  Booth,  and 
alone;  were  occasionally  absent  when  Booth  called,  who  seemed 
anxious  for  their  return — would  sometimes  leave  notes  for  them,  and 
sometimes  a  request  that  when  they  came  in  they  should  be  told  to 
come  to  the  stable.  On  the  18th  of  March  last,  when  Booth  played 
in  "The  Apostate,"  the  witness,  Mrs.  Vantyne,  received  from, 
O'Laughlin  complimentary  tickets.  These  persons  remained  there 
until  the  20th  of  March.  They  were  visited,  so  far  as  the  witness 
knows,  during  their  stay  at  her  house  only  by  Booth,  save  that  on  a 
single  occasion  an  unknown  man  came  to  see  them,  and  remained 
with  them  over  night.  They  told  the  witness  the)7  were  in  the  "oil 
business.  'J  With  Mudd,  the  guilty  purpose  was  sought  to  be  con- 
cealed by  declaring  that  he  was  in  the  "land  business;"  with 
O'Laughlin  and  Arnold  it  was  attempted  to  be  concealed  by  the  pre- 
tence that  they  were  in  the  "  oil  business."  Booth,  it  is  proved, 
had  closed  up  all  connexion  with  oil  business  last  September.  There 
is  not  a  word  of  testimony  to  show  that  the  accused,  O'Laughlin  and 
Arnold,  ever  invested  or  sought  to  invest,  in  any  way  or  to  any 
amount,  in  the  oil  business;  their  silly  words  betray  them;  they 
forgot  when  they  uttered  that  false  statement  that  truth  is  strong, 
next  to  the  Almighty,  and  that  their  crime,  must  find  them  out  was 
the  irrevocable  and  irresistible  law  of  nature  and  of  nature's  God. 

One  of  their  co-conspirators,  known  as  yet  only  to  the  guilty  par- 
ties to  this  damnable  plot  and  to  the  Infinite,  who  will  unmask  and 
avenge  all  blood-guiltiness,  comes  to  bear  witness,  unwittingly,  against 
them.  This  unknown  conspirator,  who  dates  his  letter  at  South 
Branch  Bridge,  April  G,  18G5,  mailed  and  postmarked  Cumberland, 
Maryland,  and  addressed  to  John  Wilkes  Booth,  by  his  initials, 
"  J.  W.  B.,  National  Hotel,  Washington,  D.  0.,"  was  also  in  the  "oil 
speculation."  In  that  letter  he  says  : 

"FniEXD  WILKES  :  I  received  yours  of  March  12th,  and  reply  as  soon  as  prac- 
ticable. I  saw  French,  Brady,  and  others  about  the  oil  speculation.  The  sub- 
scription to  the  stock  amounts  to  eight  thousand  dollars,  and  I  add  one  thousand 
myself,  which  is  about  all  I  can  stand.  Now,  when  you  sink  your  well,  go 
deep  enough;  don't  fall ;  everything  depends  upon  you  and  your  helpers. 


87 

If  you  cannot  get  through  on  your  trip  after  you  strike  oil,  strike  through 
Thornton  gap  and  across  by  Capon,  Romney,  and  down  the  Branch.  I  can 
keep  you  safe,  from  all  hardships  for  a  year.  I  am  clear  of  all  surveillance  now 
that  infernal  Purdy  is  beat.  *  *  * 

"  I  send  this  by  Tom,  and  if  he  don't  get  drunk  you  will  get  it  the  9th.  At 
all  events,  it  cannot  be  understood  if  lost.  *  *  * 

"No  more,  only  Jake  will  be  at  Green's  toith  the  funds.     (Signed)  LON." 

That  this  letter  is  not  a  fabrication  is  made  apparent  by  the  testi- 
mony of  Purdy,  whose  name  occurs  in  the  letter.  He  testified  that 
he  had  been  a  detective  in  the  government  service,  and  that  he  had 
been  falsely  accused,  as  the  letter  recites,  and  put  under  arrest ;  that 
there  was  a  noted  rebel  by  the  name  of  Green  living  at  Thornton 
gap;  that  there  was  a  servant,  who  drank,  known  as  "Tom,"  in  the 
neighborhood  of  South  Branch  Bridge  ;  that  there  is  an  obscure  route 
through  the  gap,  and  as  described  in  the  letter  ;  and  that  a  man  com- 
monly called  "Lon"  lives  at  South  Branch  Bridge.  If  the  court  are 
satisfied — and  it  is  for  them  to  judge — that  this  letter  was  written 
before  the  assassination,  as  it  purports  to  have  been,  and  on  the  day 
of  its  date,  there  can  be  no  question  with  any  one  who  reads  it  that  the 
writer  was  in  the  conspiracy,  and  knew  that  the  time  of  its  execution 
drew  nigh.  If  a  conspirator,  every  word  of  its  contents  is  evidence 
against  every  other  party  to  this  conspiracy. 

Who  can  fail  to  understand  this  letter?  His  words,  "go  deep 
enough,"  "don't  fail,"  "everything  depends  on  you  and  your 
helpers,"  "if  you  can't  get  through  on  your  trip  after  you  strike  oil, 
strike  through  Thornton  gap,"  &c.,  and  "I  can  keep  you  safe  from 
all  hardships  for  a  year, "  necessarily  imply  that  when  he  "strikes 
oil"  there  will  be  an  occasion  for  a  flight ;  that  a  trip,  or  route,  has 
already  been  determined  upon;  that  he  may  not  be  able  to  go  through 
by  that  route;  in  which  event  he  is  to  strike  for  Thornton  gap,  and 
across  by  Capon  and  Romney,  and  down  the  branch,  for  the  shelter 
which  his  co-conspirator  offers  him.  "I  am  clear  of  all  surveillance 
now" — does  any  one  doubt  that  the  man  who  wrote  those  words 
wished  to  assure  Booth  that  he  was  no  longer  watched,  and  that 
Booth  could  safely  hide  with  him  from  his  pursuers  ?  Does  any  one 
doubt,  from  the  further  expression  in  this  letter,  "Jake  will  be  at 
Green's  with  the  funds,"  that  this  was  a  part  of  the  price  of  blood, 
or  that  the  eight  thousand  dollars  subscribed  by  others,  and  the  one 
thousand  additional,  subscribed  by  the  writer,  were  also  a  part  of  the 
price  to  be  paid  ? 

"The  oil  business,"  which  was  the  declared  business  of  O'Laughlin 


88 

and  Arnold,  was  the  declared  business  of  the  infamous  writer  of 
this  letter;  was  the  declared  business  of  John  H.  Surratt;  was  the 
declared  business  of  Booth  himself,  as  explained  to  Chester  and 
Payne;  was  "  the  business"  referred  to  in  his  telegrams  to  0' Laugh- 
lin,  and  meant  the  murder  of  the  President,  of  his  cabinet,  and  of 
General  Grant.  The  first  of  these  telegrams  is  dated  Washington, 
13th  March,  and  is  addressed  to  M.  O'Laughlin,  No.  57  North  Exeter 
street,  Baltimore,  Maryland,  arid  is  as  follows:  "Don't  you  fear  to 
neglect  your  business  ;  you  had  better  come  on  at  once.  J.  Booth." 
The  telegraphic  operator,  Hoffman,  who  sent  this  despatch  from 
Washington,  swears  that  John  Wilkes  Booth  delivered  it  to  him  in 
person  on  the  day  of  its.  date;  and  tho  handwriting  of  the  original 
telegram  is  established  beyond  question  to  be  that  of  Booth.  The 
other  telegram  is  dated  Washington,  March  27,  addressed  "M. 
O'Laughlin,  Esq.,  57  North  Exeter  street,  Baltimore,  Maryland,'7  and 
is  as  follows  :  "Get  word  to  Sam.  Come  on  with  or  without  him 
on  Wednesday  morning.  We  sell  that  day  sure  ;  don't  fail.  J. 
Wilkes  Booth.7'  The  original  of  this  telegram  is  also  proved  to  be  in 
the  handwriting  of  Booth.  The  sale  referred  to  in  this  last  telegram 
was  doubtless  the  murder  of  the  President  and  others — the  "oil 
speculation,"  in  which  the  writer  of  the  letter  from  South  Branch 
Bridge,  dated  April  G,  had  taken  a  thousand  dollars,  and  in  which 
Booth  said  there  was  money,  and  Sanders  said  there  was  money, 
and  Atzerodt  said  there  was  money.  The  words  of  this  telegram, 
"  get  word  to  Sam,"  mean  Samuel  Arnold,  his  co-conspirator,  who 
had  been  with  him  during  all  his  stay  in  Washington,  at  Mrs.  Van- 
tyne's.  These  parties  to  this  conspiracy,  after  they  had  gone  to 
Baltimore,  had  additional  correspondence  with  Booth,  which  the 
court  must  infer  had  relation  to  carrying  out  the  purposes  of  their 
confederation  and  agreement.  The  colored  witness,  Williams,  testifies 
that  John  Wilkes  Booth  handed  him  a  letter  for  Michael  O'Laughlin, 
and  another  for  Samuel  Arnold,  in  Baltimore,  some  time  in  March 
last;  one  of  which  he  delivered  to  O'Laughlin  at  the  theatre  in  Balti- 
more, and  the  other  to  a  lady  at  the  door  where  Arnold  boarded  in 
Baltimore. 

Their  agreement  and  co-operation  in  the  common  object  having 
been  thus  established,  the  letter  written  to  Booth  by  the  prisoner 
Arnold,  dated  March  27,  1865,  the  handwriting  of  which  is  proved 
before  the  court,  and  which  was  found  in  Booth's  possession  after  the 
assassination,  becomes  testimony  against  O'Laughlin,  as  well  as 


89 

against  the  writer  Arnold,  because  it  is  an  act  done  in  furtherance 
of  their  combination.     That  letter  is  as  follows: 

"  DEAU  JOHN  :  Wns  business  so  important  that  you  could  not  remain  in 
Baltimore  till  I  saw  you  ?  I  came  in  as  soon  as  I  could,  but  found  you  had 
gone  to  Washington.  I  called  also  to  see  Mike,  but  learned  from  his  mother 
he  had  gone  out  with  you  and  had  not  returned.  I  concluded,  therefore,  he 
had  gone  with  you.  How  *  inconsiderate  you  have  been!  When  I  left  you, 
you  stated  that  we  would  not  meet  in  a  month  or  so,  and  therefore  I  made  appli- 
cation for  employment,  an  answer  to  which  I  shall  receive  during  the  week.  I 
told  my  parents  I  had  ceased  with  you.  Can  I  then,  under  existing  circum- 
stances, act  as  you  request?  You  know  full  well  that  the  government  suspi- 
cions something  is  going  on  there,  therefore  the  undertaking  is  becoming  more 
complicated.  Why  not,  for  the  present,  desist] — for  various  reasons,  which,  if 
you  look  into,  you  can  readily  see  without  my  making  any  mention  thereof. 
You  nor  any  one  can  censure  me  for  my  present  course.  You  have  been  its 
cause,  for  how  can  I  now  come  after  telling  them  I  had  left  you  ?  Suspicion 
rests  upon  me  now  from  my  whole  family,  and  even  parties  in  the  country.  I 
will  be  compelled  to  leave  home  any  how,  and  how  soon  I  care  not.  None,  no, 
not  one,  were  more  in  favor  of  the  enterprise  than  myself,  and  to-day  would  be 
there  had  you  not  done  as  you  have.  By  this,  I  mean  manner  of  proceeding. 
I  am,  as  you  well  know,  innced.  I  am,  you  may  say,  in  rags,  whereas,  to-day,  I 
ought  to  be  well  clothed.  I  do  not  feel  right  stalking  about  with  means,  and 
more  from  appearances  a  beggar.  I  feel  my  dependence.  But,  even  all  this 
would  have  been,  and  was,  forgotten,  for  I  w.as  one  with  you.  Time  more  pro- 
mtious  will  arrive  yet.  Do  not  act  rashly  or  in  haste.  I  would  prefer  your 
first  query,  '  Go  and  see  how  it  will  be  taken  in  llichmond,'  and  ere  long  I 
shall  be  better  prepared  to  again  be  with  you.  I  dislike  writing.  Would 
sooner  verbally  make  known  my  views.  Yet  your  now  waiting  causes  me  thus 
to  proceed.  Do  not  in  anger  peruse  this.  Weigh  all  I  have  said,  and,  as  a  ra- 
tional man  and  a  friend,  you  cannot  censure  or  upbraid  my  conduct.  I  sin- 
cerely trust  this,  nor  aught  else  that  shall  or  may  occur,  will  ever  be  an  obsta- 
cle to  obliterate  our  former  friendship  and  attachment.  Write  me  to  Baltimore, 
as  I  expect  to  be  in  about  Wednesday  or  Thursday;  or,  if  you  can  possibly 
come  on,  I  will  Tuesdiiy  meet  you  at  Baltimore  at  B. 
"  Ever,  I  subscribe  myself,  your  friend, 

SAM." 

Here  is  the  confession  of  the  prisoner  Arnold,  that  he  was  one  with 
Booth  in  this  conspiracy;  the  further  confession  that  they  are  suspected 
by  the  government  of  their  country,  and  the  acknowledgment  that  since 
they  parted  Booth  had  communicated,  among  other  things,  a  suggestion 
which  leads  to  the  remark  in  this  letter,  "I  would  prefer  your  first 
query,  '  Go  and  see  how  it  will  be  taken  at  Richmond, '  and  ere  long 


90 

I  shall  be  better  prepared  to  again  be  with  you."  This  is  a  declara- 
tion that  affects  Arnold,  Booth,  and  O'Laughlin  alike,  if  the  court 
are  satisfied,  and  it  is  difficult  to  see  how  they  can  have  doubt  on  the 
subject,  that  the  matter  to  be  referred  to  Richmond  is  the  matter  of 
the  assassination  of  the  President  and  others,  to  effect  which  these 
parties  had  previously  agreed  and  conspired  together.  It  is  a  matter 
in  testimony,  by  the  declaration  of  John  H.  Surratt,  who  is  as  clearly 
proved  to  have  been  in  this  conspiracy  and  murder  as  Booth  himself, 
that  about  the  very  date  of  this  letter,  the  27th  of  March,  upon  the 
suggestion  of  Booth,  and  with  his  knowledge  and  consent,  he  went 
to  Richmond,  not  only  to  see  "how  it  would  be  taken  there,"  but  to 
get  funds  with  which  to  carry  out  the  enterprise,  as  Booth  had  already 
declared  to  Chester  in  one  of  his  last  interviews,  when  he  said  that  he 
or  "some  one  of  the  party"  would  be  constrained  to  go  to  Richmond 
for  funds  to  carry  out  the  conspiracy.  Surratt  returned  from  Rich- 
mond, bringing  with  him  some  part  of  the  money  for  which  he  went, 
and  was  then  going  to  Canada,  and,  as  the  testimony  discloses,  bring- 
ing with  him  the  despatches  from  Jefferson  Davis  to  his  chief  agents 
in  Canada,  which,  as  Thompson  declared  to  Conover,  made  the  pro- 
posed assassination  "all  right."  Surratt,  after  seeing  the  parties 
here,  left  immediately  for  Canada  and  delivered  his  despatches  to 
Jacob  Thompson,  the  agent  of  Jefferson  Davis.  This  was  done  by 
Surratt  upon  the  suggestion,  or  in  exact  accordance  with  the  sugges- 
tion, of  Arnold,  made  on  the  27th  of  March  in  his  letter  to  Booth  just 
read,  and  yet  you  are  gravely  told  that  four  weeks  before  the  27th  of 
March  Arnold  had  abandoned  the  conspiracy. 

Surratt  reached  Canada  with  these  despatches,  as  we  have  seen, 
about  the  6th  or  7th  of  April  last,  when  the  witness  Conover  saw 
them  delivered  to  Jacob  Thompson  and  heard  their  contents  stated 
by  Thompson,  and  the  declaration  from  him  that  these  despatches 
made  it  "all  right."  That  Surratt  was  at  that  time  in  Canada  is  not 
only  established  by  the  testimony  of  Conover,  but  it  is  also  in  evi- 
dence that  he  told  Weichmann  on  the  3d  of  April  that  he  was  going 
to  Canada,  and  on  that  day  left  for  Canada,  and  afterwards,  two  let- 
ters addressed  by.  Surratt  over  the  fictitious  signature  of  John  Har- 
rison, to  his  mother  and  to  Miss  Ward,  dated  at  Montreal,  were  re- 
ceived by  them  on  the  14th  of  April,  as  testified  by  Weichmann  and 
by  Miss  Ward,  a  witness  called  for  the  defence.  Thus  it  appears 
that  the  condition  named  by  Arnold  in  his  Jotter  had  been  complied 
with.  Booth  had  "gone  to  Richmond,"  in  the  person  of  Surratt, 
"to  see  how  it  would  be  taken."  The  rebel  authorities  at  Rich- 


91 

mond  had  approved  it,  the  agent  had  returned,  and  Arnold  was,  in  his 
own  words,  thereby  the  better  prepared  to  rejoin  Booth  in  the  prose- 
cution of  this  conspiracy. 

To  this  end  Arnold  went  to  Fortress  Monroe.  As  his  letter  ex- 
pressly declares,  Booth  said  when  they  parted,  "we  would  not 
meet  in  a  month  or  so,  and  therefore  I  made  application  for  employ- 
ment— an  answer  to  which  I  shall  receive  during  the  week."  He 
did  receive  the  answer  that  week  from  Fortress  Monroe,  and  went 
thereto  await  the  "more  propitious  time,"  bearing  with  him  the 
weapon  of  death  which  Booth  had  provided  and  ready  to  obey  his 
call,  as  the  act  had  been  approved  at  Richmond  and  been  made  "  all 
right."  Acting  upon  the  same  fact  that  the  conspiracy  had  been  ap- 
proved in  Richmond  and  the  funds  provided,  O'Laughlin  came  to 
Washington  to  identify  General  Grant,  the  person  who  was  to  be- 
come the  victim  of  his  violence  in  the  final  consummation  of  this 
crime — General  Grant,  whom,  as  is  averred  in  the  specification,  it 
had  become  the  part  of  O'Laughlin  by  his  agreement  in  this  conspir- 
acy to  kill  and  murder.  On  the  evening  preceding  the  assassination — 
the  13th  of  April — by  the  testimony  of  three  reputable  witnesses, 
against  whose  truthfulness  not  one  word  is  uttered  here  or  elsewhere, 
O'Laughlin  went  into  the  house  of  the  Secretary  of  War,  where  Gen- 
eral Grant  then  was,  and  placed  himself  in  position  in  the  hall  where  he 
could  see  him,  having  declared  before  he  reached  that  point  to  one 
of  these  witnesses  that  he  wished  to  see  General  Grant.  The  house 
was  brilliantly  illuminated  at  the  time;  two  at  least  of  the  witnesses' 
conversed  with  the  accused  and  the  other  stood  very  near  to  him, 
took  special  notice  of  his  conduct,  called  attention  to  it,  and  suggested 
that  he  be  put  out  of  the  house,  and  he  was  accordingly  put  out  by 
one  of  the  witnesses.  These  witnesses  are  confident,  and  have  no 
doubt,  and  so  swear  upon  their  oaths,  that  Michael  O'Laughlin  is  the 
man  who  was  present  on  that  occasion.  There  is  no  denial  on  the 
part  of  the  accused  that  he  was  in  Washington  during  the  day  and 
during  the  night  of  April  13,  and  also  during  the  day  and  during  the 
night  of  the  J4th;  and  yet,  to  get  rid  of  this  testimony,  recourse  is 
had  to  that  common  device — an  alibi',  a  device  never,  I  may  say, 
more  frequently  resorted  to  than  in  this  trial.  But  what  an  alibi  I 
Nobody  is  called  to  prove  it,  save  some  men  who,  by  their  own 
testimony,  were  engaged  in  a  drunken  debauch  through  the  evening. 
A  reasonable  man  who  reads  their  evidence  can  hardly  be  expected 
to  allow  it  to  outweigh  the  united  testimony  of  three  unimpeached 


and  unimpeachable  witnesses  who  were  clear  in  their  statements, 
who  entertain  no  doubt  of  the  truth  of  what  they  say,  whose  oppor- 
tunities to  know  were  full  and  complete,  and  who  were  constrained  to 
take  special  notice  of  the  prisoner  by  reason  of  his  extraordinary 
conduct. 

These  witnesses  describe  accurately  the  appearance,  stature,  and 
complexion  of  the  accused,  but  because  they  describe  his  clothing  as 
dark  or  black,  it  is  urged  that  as  part  of  his  clothing,  although  dark, 
was  not  black,  the  witnesses  are  mistaken.  O'Laughlin  and  his 
drunken  companions  (one  of  whom  swears  that  he  drank  ten  times 
that  evening)  were  strolling  in  the  streets  and  in  the  direction 
of  the  house  of  the  Secretary  of  War,  up  the  Avenue;  but  you 
are  asked  to  believe  that  these  witnesses  could  not  be  mistaken 
in  saying  they  were  not  off  the  Avenue  above  7th  street,  or  on  K 
street.  I  venture  to  say  that  no  man  who  reads  their  testimony  can 
determine  satisfactorily  all  the  places  that  were  visited  by  O'Laugh- 
lin and  his  drunken  associates  that  evening  from  7  to  11  o'clock 
p.  m.  All  this  time,  from  7  to  11  o'clock  p.  m.,  must  be  accounted  for 
satisfactorily  before  the  alibi  can  be  established.  Laughlan  does  not 
account  for  all  the  time,  for  he  left  O'Laughlin  after  7  o'clock, 
and  rejoined  him,  as  he  says,  "I  suppose  about  8  o'clock."  Grill et 
did  not  meet  him  until  half-past  ten,  and  then  only  casually  saw  him 
in  passing  the  hotel.  May  not  Grillet  have  been  mistaken  as  to  the 
fact,  although  he  did  meet  O'Laughlin  after  11  o'clock  the  same 
evening,  as  he  swears? 

Purdy  swears  to  seeing  him  in  the  bar  with  Grillet  about  half-past 
10,  but,  as  we  have  seen  by  Grillet' s  testimony,  it  must  have  been 
after  11  o'clock.  Murphy  contradicts,  as  to  time,  both  Grillet  and 
Purdy,  for  he  says  it  was  half-past  11  or  12  o'clock  when  he  and 
O'Laughlin  returned  to  Rullman's  from  Platz's,  and  Early  swears  the 
accused  went  from  Rullman's  to  2d  street  to  a  dance  about  a  quarter- 
past  11  o'clock,  when  O'Laughlin  took  the  lead  in  the  dance  and  stayed 
about  one  hour.  I  follow  these  witnesses  no  further.  They  contra- 
dict each  other,  and  do  not  account  for  O'Laughlin  all  the  time  from 
7  to  11  o'clock.  I  repeat  that  no  man  can  read  their  testimony  with- 
out finding  contradictions  most  material  as  to  time,  and  coming  to  the 
conviction  that  they  utterly  fail  to  account  for  O'Laughlin' s  wherea- 
bouts on  that  evening.  To  establish  an  alibi  the  witnesses  must  know 
{he  fact  and  testify  to  it.  Laughlan,  Grillet,  Purdy,  Murphy,  and 
Early  utterly  fail  to  prove  it,  and  only  succeed  in  showing  that  they 
did  not  know  where  O'Laughlin  was  all  this  time,  and  that  some  of 


93 

them  were  grossly  mistaken  in  what  they  testified,  both  as  to  time  and 
place.  The  testimony  of  James  B.  Henderson  is  equally  unsatisfac- 
tory. He  is  contradicted  by  other  testimony  of  the  accused  as  to 
place.  He  says  O'Laughlin  went  up  the  Avenue  above  7th  street,  but 
that  he  did  not  go  to  9th  street.  The  other  witnesses  swear  he  went 
to  9th  street.  He  swears  h*e  went  to  Canterbury  about  9  o'clock, 
after  going  back  from  7th  street  to  Rullman's.  Laughlan  swears  that 
O'Laughlin  was  with  him  at  the  corner  of  the  Avenue  and  9th  street 
at  9  o'clock,  and  went  from  there  to  Canterbury,  while  Early 
swears  that  O'Laughlin  went  up  as  far  as  llth  street,  and  returned 
with  him  and  took  supper  at  Welcker's  about  8  o'clock.  If  these 
witnesses  prove  an  alibi,  it  is  really  against  each  other. '  It  is  folly 
to  pretend  that  they  prove  facts  which  make  it  impossible  that 
O'Laughlin  could  have  been  at  the  house  of  Secretary  Stantou,  as 
three  witnesses  swear  he  was,  on  the  evening  of  the  13th  of  April, 
looking  for  General  Grant. 

Has  it  not,  by  the  testimony  thus  reviewed,  been  established  prima 
facie  that  in  the  months  of  February,  March,  and  April,  0'  Laughlin 
had  combined,  confederated,  and  agreed  with  John  Wilkes  Booth  and 
Samuel  Arnold  to  kill  and  murder  Abraham  Lincoln,  "William  H. 
Seward,  Andrew  Johnson,  and  Ulysses  S.  Grant?  Is  it  not  estab- 
lished, beyond  a  shadow  of  doubt,  that  Booth  had  so  conspired  with 
the  rebel  agents  in  Canada  as  early  as  October  last;  that  he  was  in 
search  of  agents  to  do  the  work  on  pay,  in  the  interests  of  the  re- 
bellion, and  that  in  this  speculation  Arnold  and  O'Laughlin  had  joined 
as  early  as  February  ;  that  then,  and  after,  with  Booth  and  Surratt, 
they  were  in  the  "oil  business,"  which  was  the  business  of  assassina- 
tion by  contract  as  a  speculation  ?  If  this  conspiracy  on  the  part  of 
O'Laughlin  with  Arnold  is  established  even  prima  facie,  the  declara- 
tions and  acts  of  Arnold  and  Booth,  the  other  conspirators,  in  fur- 
therance of  the  common  design,  is  evidence  against  O'Laughlin  as 
well  as  against  Arnold  himself  or  the  other  parties.  The  rule  of  law 
is,  that  the  act  or  declaration  of  one  conspirator,  done  in  pursuance  or 
furtherance  of  the  common  design,  is  the  act  or  declaration  of  all 
the  conspirators.  (1  Wharton,  706.) 

The  letter,  therefore,  of  his  co-conspirator,  Arnold,  is  evidence 
against  O'Laughlin,  because  it  is  an  act  in  the  prosecution  of  the  com- 
mon conspiracy,  suggesting  what  should  be  done  in  order  to  make  it 
effective,  and  which  suggestion,  as  has  been  stated,  was  followed 
out.  The  defence  has  attempted  to  avoid  the  force  of  this  letter  by 
reciting  the  statement  of  Arnold,  made  to  Homer  at  the  time  he 


94 

was  arrested,  in  which  he  declared,  among  other  things,  that  the 
purpose  was  to  abduct  President  Lincoln  and  take  him  south ;  that 
it  was  to  be  done  at  the  theatre  by  throwing  the  President  out  of  the 
box  upon  the  floor  of  the  stage,  when  the  accused  was  to  catch  him. 
The  very  announcement  of  this  testimony  excited  derision  that  such 
a  tragedy  meant  only  to  take  the  President  and  carry  him  gently 
away  !  This  pigmy  to  catch  the  giant  as  the  assassins  hurled  him  to 
the  floor  from  an  elevation  of  twelve  feet  !  The  court  has  viewed  the 
theatre,  and  must  be  satisfied  that  Booth,  in  leaping  from  the  Presi- 
dent's box,  broke  his  limb.  The  court  cannot  fail  to  conclude  that 
this  statement  of  Arnold  was  but  another  silly  device,  like  that  of 
"the  oil  business,"  which,  for  the  time  being,  he  employed  to  hide 
from  the  knowledge  of  his  captor  the  fact  that  the  purpose  was  to 
murder  the  President.  No  man  can,  for  a  moment,  believe  that  any 
one  of  these  conspirators  hoped  or  desired,  by  such  a  proceeding  as 
that  stated  by  this  prisoner,  to  take  the  President  alive  in  the  pres- 
ence of  thousands  assembled  in  the  theatre  after  he  had  been  thus 
thrown  upon  the  floor  of  the  stage,  much  less  to  carry  him  through 
the  city,  through  the  lines  of  your  army,  and  deliver  him  into  the 
hands  of  the  rebels.  No  such  purpose  was  expressed  or  hinted  by 
the  conspirators  in  Canada,  who  commissioned  Booth  to  let  these  as- 
sassinations on  contract.  I  shall  waste  not  a  moment  more  in  combat- 
ting such  an  absurdity. 

Arnold  does  confess  that  he  was  a  conspirator  with  Booth  in  this 
purposed  murder  ;  that  Booth  had  a  letter  of  introduction  to  Dr. 
Mudd  ;  that  Booth,  O'Laughlin,  Atzerodt,  Surratt,  a  man  with  an 
alias,  "Mosby,"  and  another  whom  he  does  not  know,  and  himself, 
were  parties  to  this  conspiracy,  and  that  Booth  had  furnished  them 
all  with  arms.  He  concludes  this  remarkable  statement  to  Homer 
with  the  declaration  that  at  that  time,  to  wit,  the  first  week  of 
March,  or  four  weeks  before  he  went  to  Fortress  Monroe,  he  left  the 
conspiracy,  and  that  Booth  told  him  to  sell  his  arms  if  he  chose. 
This  is  sufficiently  answered  by  the  fact  that,  four  weeks  afterwards, 
he  wrote  his  letter  to  Booth,  whicli  was  found  in  Booth's  possession 
after  the  assassination,  suggesting  to  him  what  to  do  in  order  to  make 
the  conspiracy  a  success,  and  by  the  further  fact  that  at  the  very 
moment  he  uttered  these  declarations,  part  of  his  arms  were  found 
upon  his  person,  and  the  rest  not  disposed  of,  but  at  his  father's 
house. 

A  party  to  a  treasonable  and  murderous  conspiracy  against  the 
government  of  his  country  cannot  be  held  to  have  abandoned  it  be- 


95 

cause  he  makes  such  a  declaration  as  this,  when  he  is  in  the  hands  of 
the  officer  of  the  law.  arrested  for  his  crime,  and  especially  when  his 
declaration  is  in  conflict  with  and  expressly  contradicted  by  his 
written  acts,  and  unsupported  by  any  conduct  of  his  which  becomes 
a  citizen  and  a  man. 

If  he  abandoned  the  conspiracy,  why  did  he  not  make  known  the 
fact  to  Abraham  Lincoln  and  his  constitutional  advisers  tjhat  these 
men,  armed  with  the  weapons  of  assassination,  were  daily  lying  in 
wait  for  their  lives?  To  pretend  that  a  man  who  thus  conducts  him- 
self for  weeks  after  the  pretended  abandonment,  volunteering  advice 
for  the  successful  prosecution  of  the  conspiracy,  the  evidence  of  which 
is  in  writing,  and  about  which  there  can  be  no  mistake,  has,  in  fact, 
abandoned  it,  is  to  insult  the  common  understanding  of  men. 
O'Laughlin  having  conspired  with  Arnold  to  do  this  murder,  is, 
therefore,  as  much  concluded  by  the  letter  of  Arnold  of  the  27th  of 
March  as  is  Arnold  himself.  The  further  testimony  touching  0'  Laughlin, 
that  of  Streett,  establishes  the  fact  that  about  the  1st  of  April  he 
saw  him  in  confidential  conversation  with  J.  Wilkes  Booth,  in  this  city, 
on  the  Avenue.  Another  man,  whom  the  witness  does  not  know,  was  in 
conversation.  O'Laughlin  called  Streett  to  one  side,  and  told  him  Booth 
was  busily 'engaged  with  his  friend — was  talking  privately  to  his  friend. 
This  remark  of  O'Laughlin  is  attempted  to  be  accounted  for,  but  the 
attempt  failed  ;  his  counsel  taking  the  pains  to  ask  what  induced 
O'Laughlin  to  make  the  remark,  received  the  fit  reply :  "I  did  not 
see  the  interior  of  Mr.  0' Laughlin' s  mind  ;  I  cannot  tell."  It  is  the 
province  of  this  court  to  infer  why  that  remark  was  made,  and  what 
it  signified. 

That  John  H.  Surratt,  George  A.  Atzerodt,  Mary  E.  Surratt,  David 
E.Herold,  and  Louis  Payne,  entered  into  this  conspiracy  with  Booth, 
is  so  very  clear  upon  the  testimony,  that  little  time  need  be  occu- 
pied in  bringing  again  before  the  court  the  evidence  which  establishes 
it.  By  the  testimony  of  Weichmann  we  find  Atzerodt  in  February  at 
the  house  of  the  prisoner,  Mrs.  Surratt.  He  inquired  for  her  or  for 
John  when  he  came  and  remained  over  night.  After  this  and  before 
the  assassination  he  visited  there  frequently,  and  at  that  house  bore 
the  name  of  "Port  Tobacco,"  the  name  by  which  he  was  known  in 
Canada  among  the  conspirators  there.  The  same  witness  testifies 
that  he  met  him  on  the  street,  when  he  said  he  was  going  to  visit 
Payne  at  the  Herndon  House,  and  also  accompanied  him,  along  with 
Herold  and  John  H.  Surratt,  to  the  theatre  in  March  to  hear  Booth 
play  in  the  Apostate.  At  the  Pennsylvania  House,  one  or  two  weeks 


96 

previous  to  the  assassination,  Atzerodt  made  the  statement  to  Lieuten- 
ant Keim,  when  asking  for  his  knife  which  he  had  left  in  his  room,  a 
knife  corresponding  in  size  with  the  one  exhibited  in  court,  "  I  want 
that;  if  one  fails  I  want  the  other,"  wearing  at  the  same  time  his 
revolver  at  his  belt.  He  also  stated  to  Greenawalt,  of  the  Pennsyl- 
vania House,  in  March,  that  he  was  nearly  broke,  but  had  friends 
enough  to  give  him  as  much  money  as  would  see  him  through,  adding, 
"I  am  going  away  some  of  these  days,  but  will  return  with  as  much 
gold  as  will  keep  me  all  my  lifetime."  Mr.  Greenawalt  also  says 
that  Booth  had  frequent  interviews  with  Atzerodt,  sometimes  in  the 
room,  and  at  other  times  Booth  would  walk  in  and  immediately  go 
out,  Atzerodt  following. 

John  M.  Lloyd  testifies  that  some  six  weeks  before  the  assassina- 
tion, Herold,  Atzerodt,  and  John  H.  Surratt  came  to  his  house  at  Sur- 
rattsville,  bringing  with  them  two  Spencer  carbines  with  ammuni- 
tion, also  a  rope  and  wrench.  Surratt  asked  the  witness  to  take 
care  of  them,  and  to  conceal  the  carbines.  Surratt  took  him  into  a 
room  in  the  house,  it  being  his  mother's  house,  and  showed  the  wit- 
ness where  to  put  the  carbines,  between  the  joists  on  the  second  floor. 
The  carbines  were  put  there  according  to  his  directions,  and  con- 
cealed. Marcus  P.  Norton  saw  Atzerodt  in  conversation  with  Booth 
at  the  National  Hotel  about  the  2d  or  3d  of  March  ;  the  conversa- 
tion was  confidential,  and  the  witness  accidentally  heard  them  talking 
in  regard  to  President  Johnson,  and  say  that  "the  class-of  witnesses 
would  be  of  that  character  that  there  could  be  little  proven  by  them." 
This  conversation  may  throw  some  light  on  the  fact  that  Atzerodt 
was  found  in  possession  of  Booth's  bank  book  ! 

Colonel  Nevens  testifies  that  on  the  12th  of  April  last  he  saw  At- 
zerodt at  the  Kirkwood  House;  that  Atzerodt  there  asked  him,  a 
stranger,  if  he  knew  where  Vice  President  Johnson  was,  and  where 
Mr.  Johnson's  room  was.  Colonel  Nevens  showed  him  where  the  room 
of  the  Vice  President  was,  and  told  him  that  the  Vice  President  was 
then  at  dinner.  Atzerodt  then  looked  into  the  dining-room,  where 
Vice  President  Johnson  was  dining  alone.  Robert  R.  Jones,  the 
clerk  at  the  Kirkwood  House,  states  that  on  the  14th,  the  day  of 
the  murder,  two  days  after  this,  Atzerodt  registered  his  name  at  the 
hotel,  G.  A.  Atzerodt,  and  took  No.  126,  retaining  the  room  that 
day,  and  carrying  away  the  key.  In  this  room,  after  the  assassina- 
tion, were  found  the  knife  and  revolver  with  which  he  intended  to 
murder  the  Vice  President. 

The  testimony  of  all  these  witnesses  leaves  no  doubt  that  the 


97 

prisoner  George  A.  Atzerodt  entered  into  this  conspiracy  with  Booth  ; 
that  he  expected  to  receive  a  large  compensation  for  the  service  that 
he  would  render  in  its  execution  ;  that  he  had  undertaken  the  assassi- 
nation of  the  Vice  President  for  a  price  ;  that  he,  with  Surratt  and 
Herold,  rendered  the  important  service  of  depositing  the  arms  and 
ammunition  to  be  used  by  Booth  and  his  confederates  as  a  protection 
in  their  flight  after  the  conspiracy  had  been  executed  ;  and  that  he 
was  careful  to  have  his  intended  victim  pointed  out  to  him,  and  the 
room  he  occupied  in  the  hotel,  so  that  when  he  came  to  perfdrm  his 
horrid  work  he  would  know  precisely  where  to  go  and  whom  to 
strike. 

I  take  no  further  notice  now  of  the  preparation  which  this  prisoner 
made  for  the  successful  execution  of  this  part  of  the  traitorous  and  mur- 
derous design.  The  question  is,  did  he  enter  into  this  conspiracy  ? 
His  language  overheard  by  Mr.  Norton  excludes  every  other  con- 
clusion. Vice  President  Johnson's  name  was  mentioned  in  that 
secret  conversation  with  Booth,  and  the  very  suggestive  expression 
was  made  between  them  that  "little  could  be  proved  by  the  wit- 
nesses." His  confession  in  his  defence  is  conclusive  of  his  guilt. 

That  Payne  was  in  this  conspiracy  is  confessed  in  the  defence 
made  by  his  counsel,  and  is  also  evident  from  the  facts  proved,  that 
when  the  conspiracy  was  being  organized  in  Canada  by  Thompson, 
Sanders,  Tucker,  Cleary,  and  Clay,  this  man  Payne  stood  at  the 
door  of  Thompson  ;  was  recommended  and  indorsed  by  Clay  with  the 
words,  "  We  trust  him  ;"  that  after  coming  hither  he  first  reported 
himself  at  the  house  of  Mrs.  Mary  E.  Surratt,  inquired  for  her  and  for 
John  H.  Surratt,  remained  there  for  four  days,  having  conversation 
with  both  of  them  ;  having  provided  himself  with  means  of  disguise, 
was  also  supplied  with  pistols  and  a  knife,  such  as  he  afterwards 
used,  and  spurs,  preparatory  to  his  flight  ;  was  seen  with  John  H. 
Surratt,  practicing  with  knives  such  as  those  employed  in  this  deed 
of  assassination,  and  now  before  the  court  ;  was  afterwards  provided 
with  lodging  at  the  Herndon  House,  at  the  instance  of  Surratt  ;  was 
visited  there  by  Atzerodt,  and  attended  Booth  and  Surratt  to  Ford's 
theatre,  occupying  with  those  parties  the  box,  as  I  believe  and  which 
we  may  readily  infer,  in  which  the  President  was  afterwards  mur- 
dered. 

If  further  testimony  be  wanting  that  he  had  entered  into  the  con- 
spiracy, it  may  be  found  in  the  fact  sworn  to  by  Weichmann,  whose 
testimony  110  candid  man  will  discredit,  that  about  the  20th  of  March 
Mrs.  Surratt,  in  great  excitement,  and  weeping,  said  that  her  son 
7u 


98 

John  had  gone  away  not  to  return,  when  about  three  hours  subse- 
quently, in  the  afternoon  of  the  same  day,  John  H.  Surratt  re- 
appeared, came  rushing  in  a  state  of  frenzy  into  the  room,  in  his 
mother's  house,  armed,  declaring  he  would  shoot  whoever  came  into 
the  room,  and  proclaiming  that  his  prospects  were  blasted  and  his 
hopes  gone  ;  that  soon  Payne  came  into  the  same  room,  also  armed 
and  under  great  excitement,  and  was  immediately  followed  by 
Booth,  with  his  riding-whip  in  his  hand,  who  walked  rapidly  across 
the  floor  from  side  to  side,  so  much  excited  that  for  some  time  he  did 
not  notice  the  presence  of  the  witness.  Observing  Weichmann  the 
parties  then  withdrew,  upon  a  suggestion  from  Booth,  to  an  upper 
room,  and  there  had  a  private  interview.  From  all  that  transpired 
Qn  that  occasion,  it  is  apparent  that  when  these  parties  left  the  house 
that  day,  it  was  with  the  full  purpose  of  completing  some  act  esseji- 
tial  to  the  final  execution  of  the  work  of  assassination,  in  conformity 
with  their  previous  confederation  and  agreement.  They  returned 
foiled — from  what  cause  is  unknown — dejected,  angry,  and  covered 
with  confusion. 

It  is  almost  imposing  upon  the  patience  of  the  court  to  consume 
time  in  demonstrating  the  fact,  which  none  conversant  with  the  testi- 
mony of  this  case  can  for  a  moment  doubt,  that  John  H.  Surratt 
and  Mary  E.  Surratt  were  as  surely  in  the  conspiracy  to  murder  the 
President  as  was  John  Wilkes  Booth  himself.  You  have  the  frequent 
interviews  between  John  H.  Surratt  and  Booth,  his  intimate  relations 
with  Payne,  his  visits  from  Atzerodt  and  Herold,  his  deposit  of  the 
arms  to  cover  their  flight  after  the  conspiracy  should  have  been  exe- 
cuted ;  his  own  declared  visit  to  Richmond  to  do  what  Booth  himself 
said  to  Chester  must  be  done,  to  wit,  that  he  or  some  of  the  party 
rnustgo  to  Richmond  in  order  to  get  funds  to  carry  out  the  conspiracy  ; 
that  he  brought  back  with  him  gold,  the  price  of  blood,  confessing 
himself  that  he  was  there  ;  that  he  immediately  went  to  Canada, 
delivered  despatches  in  cipher  to  Jacob  Thompson  from  Jefferson 
Davis,  which  were  interpreted  and  read  by  Thompson  in  the  presence 
of  the  witness  Conover,  and  in  which  the  conspiracy  was  approved, 
and,  in  the  language  of  Thompson,  the  proposed  assassination  was 
"made  all  right." 

One  other  fact,  if  any  other  fact  be  needed,  and  I  have  done  with 
the  evidence  which  proves  that  John  H.  Surratt  entered  into  this 
combination;  that  is,  that  it  appears  by  the  testimony  of  the  witness, 
the  cashier  of  the  Ontario  Bank,  Montreal,  that  Jacob  Thompson, 
about  the  day  that  these  despatches  were  delivered,  and  while  Sur- 


;  .    99 

ratt  was  then  present  in  Canada,  drew  from  that  bank  of  the  rebel 
funds  there  on  deposit  the  sum  of  one  hundred  and  eighty  thousand 
dollars.  This  being  done,  Surratt  finding  it  safer,  doubtless,  to  go 
to  Canada  for  the  great  bulk  of  funds  which  were  to  be  distributed 
amongst  these  hired  assassins  than  to  attempt  to  carry  it  through 
our  lines  direct  from  Richmond,  immediately  returned  to  Washing- 
ton and  was  present  in  this  city,  as  is  proven  by  the  testimony  of 
Mr.  Reid,  on  the  afternoon  of  the  \kth  of  April,  the  day  of  the  assassi- 
nation, booted  and  spurred,  ready  for  the  flight  whenever  the  fatal 
blow  should  have  been  struck.  If  he  was  not  a  conspirator  and  a 
party  to  this  great  crime,  how  comes  it  that  from  that  hour  to.  this 
no  man  has  seen  him  in  the  capital,  nor  has  he  been  reported. any- 
where outside  of  Canada,  haying  arrived  at  Montreal,  as  the  testi- 
mony shows,  on  the  18th  of  April,  four  days  after  the  murder? 
Nothing  but  his  conscious  coward  guilt  could  possibly  induce  him  to 
absent  himself  from  his  mother,  as  he  does,  upon  her  trial.  Being 
one  of  these  conspirators,  as  charged,  every  act  of  hia  in  the  prosecu- 
tion of  this  crime  is  evidence  against  the  other  parties  to  the  con- 
spiracy. 

That  Mary  E.  Surratt  is  as  guilty  as  her  son  of  having  thus  con- 
spired, combined,  and  confederated  to  do  this  murder,  in  aid  of  this 
rebellion,  is  clear.  First,  her  house  was  the  headquarters  of 
Booth,  John  H.  Surratt,  Atzerodt,  Payne,  and  Herold.  She  is  in- 
quired for  by  Atzerodt ;  she  is  inquired  for  by  Payne  ;  and  she  is 
visited  by  Booth,  and  holds  private  conversations  with  him.  His 
picture,  together  with  that  of  the  chief  conspirator,  Jefferson  Davis, 
is  found  in  her  house.  She  sends  to  Booth  for  a  carriage  to  take  her, 
on  the  llth  of  April,  to  Surrattsville  for  the  purpose  of  perfecting 
the  arrangement  deemed  necessary  to  the  successful  execution  of  the 
conspiracy,  and  especially  to  facilitate  and  protect  the  conspirators 
in  their  escape  from  justice.  On  that  occasion  Booth,  having  dis- 
posed of  his  carriage,  gives  to  the  agent  she  employed  ten  dollars 
with  which  to  hire  a  conveyance  for  that  purpose.  And  yet  the  pre- 
tence is  made  that  Mrs.  Surratt  went  on  the  llth  to  Surrattsville  ex- 
clusively upon  her  own  private  and  lawful  business.  Can  any  one 
tell,  if  that  be  so,  how  it  comes  that  she  should  apply  to  Booth  for  a 
conveyance,  and  how  it  comes  that  he,  of  his  own  accord,  having  no 
conveyance  to  furnish  her,  should  send  her  ten  dollars  with  which' to 
procure  it?  There  is  not  the  slightest  indication  that  Booth  was 
under  any  obligation  to  her,  or  that  she  had  any  claim  upon  him, 
either  for  a  conveyance  or  for  the  means  with  which  to  procure  one, 


100 

except  that  he  was  bound  to  contribute,  being  the  agent  of  the  con- 
spirators in  Canada  and  Richmond,  whatever  money  might  be  neces- 
sary to  the  consummation  of  this  infernal  plot.  On  that  day,  the  llth 
of  April,  John  H.  Surratt  had  not  returned  from  Canada  with  the 
funds  furnished  by  Thompson  ! 

Upon  that  journey  of  the  llth  the  accused,  Mary  E.  Surratt, 
met  the  witness  John  M.  Lloyd  at  Uniontown.  She  called  him; 
he  got  out  of  his  carriage  and  came  to  her,  and  she  whispered  to 
him  in  so  low  a  tone  that  her  attendant  could  not  hear  her  words, 
though  Lloyd,  to  whom  they  were  spoken,  did  distinctly  hear 
them,  and  testifies  that  she  told  him  he  should  have  those  ' '  shoot- 
ing-irons" ready,  meaning  the  carbines  which  her  son  and  Herold 
and  Atzerodt  had  deposited  with  him,  and  added  the  reason, 
"for  they  would  soon  be  called  for."  On  the  day  of  the  assas- 
sination she  again  sent  for  Booth,  had  an  interview  with  him  in 
her  own  house,  and  immediately  went  again  to  Surrattsville,  and 
then,  at  about  six  o'  clock  in  the  afternoon,  she  delivered  to  Lloyd  a 
field-glass  and  told  him  "to  have  two  bottles  of  whiskey  and  the 
carbines  ready,  as  they  would  be  called  for  that  night."  Having 
thus  perfected  the  arrangement  she  returned  to  Washington  to  her 
own  house,  at  about  half-past  eight  o'clock  in  the  evening,  to  await 
the  final  result.  How  could  this  woman  anticipate  on  Friday  after- 
noon, at  six  o'clock,  that  these  arms  would  be  called  for  and  would 
be  needed  that  night  unless  she  was  in  the  conspiracy  and  knew  the 
blow  was  to  be  struck,  and  the  flight  of  the  assassins  attempted  and 
by  that  route  ?  Was  not  the  private  conversation  which  Booth  held 
with  her  in  her  parlor  on  the  afternoon  of  the  14th  of  April,  just 
before  she  left  on  this  business,  in  relation  to  the  orders  she  should 
give  to  have  the  arms  ready  ? 

An  endeavor  is  made  to  impeach  Lloyd.  But  the  court  will 
observe  that  no  witness  has  been  called  who  contradicts  Lloyd's 
statement  in  any  material  matter;  neither  has  his  general  character 
for  truth  been  assailed.  How,  then,  is  he  impeached  ?  Is  it  claimed 
that  his  testimony  shows  that  he  was  a  party  to  the  conspiracy  ? 
Then  it  is  conceded  by  those  who  set  up  any  such  pretence  that 
there  was  a  conspiracy.  A  conspiracy  between  whom  ?  There  can 
be  no  conspiracy  without  the  co-operation  or  agreement  of  two  or 
more  persons.  Who  were  the  other  parties  to  it?  Was  it  Mary  E. 
Surratt?  Was  it  John  H.  Surratt,  George  A.  Atzerodt,  David  E. 
Herold  ?  Those  are  the  only  persons,  so  far  as  his  own  testimony  or 
the  testimony  of  any  other  witness  discloses,  with  whom  he  had  any 


101 

communication  whatever  on  any  subject  immediately  or  remotely 
touching  this  conspiracy  before  the  assassination.  His  receipt  and 
concealment  of  the  arms  are,  unexplained,  evidence  that  he  was  in 
the  conspiracy. 

The  explanation  is  that  he  was  dependent  upon  Mary  E.  Surratt; 
was  her  tenant;  and  his  declaration,  given  in  evidence  by  the  accused 
herself,  is  that  "she  had  ruined  him,  and  brought  this  trouble  upon 
him."  But  because  he  was  weak  enough,  or  wicked  enough,  to  be- 
come the  guilty  depositary  of  these  arms,  and  to  deliver  them  on  the 
order  of  Mary  E .  Surratt  to  the  assassins,  it  does  not  follow  that  he 
is  not  to  be  believed  on  oath.  It  is  said  that  he  concealed  the  facts  that 
the  arms  had  been  left  and  called  for.  He  so  testifies  himself,  but  he 
gives  the  reason  that  he  did  it  only  from  apprehension  of  danger  to 
his  life.  If  he  were  in  the  conspiracy,  his  general  credit  being 
unchallenged,  his  testimony  being  uncontradicted  in  any  material 
matter,  he  is  to  be  believed,  and  cannot  be  disbelieved  if  his  testi- 
mony is  substantially  corroborated  by  other  reliable  witnesses.  Is 
he  not  corroborated  touching  the  deposit  of  arms  by  the  fact  that  the 
arms  are  produced  in  court — one  of  which  was  found  upon  the 
person  of  Booth  at  the  time  he  was  overtaken  and  slain,  and  which  is 
identified  as  the  same  which  had  been  left  with  Lloyd  by  Herold, 
Surratt,  and  Atzerodt  ?  Is  he  not  corroborated  in  the  fact  of  the  first 
interview  with  Mrs.  Surratt  by  the  joint  testimony  of  Mrs.  Offut  and 
Lewis  J.  Weichmann,  each  of  whom  testified,  (and  they  are  contra- 
dicted by  no  one,)  that  on  Tuesday,  the  llth  day  of  April,  at  Un'on- 
town,  Mrs.  Surratt  called  Mr.  Lloyd  to  come  to  her,  which  he  did, 
and  she  held  a  secret  conversation  with  him  ?  Is  he  not  corroborated 
as  to  the  last  conversation  on  the  14th  of  April  by  the  testimony  of 
Mrs.  Offut,  who  swears  that  upon  the  evening  of  the  14th  of  April 
she  saw  the  prisoner,  Mary  E.  Surratt,  at  Lloyd's  house,  approach 
and  hold  conversation  with  him  ?  Is  he  not  corroborated  in  the  fact, 
to  which  he  swears,  that  Mrs.  Surratt  delivered  to  him  at  that  time 
the  field-glass  wrapped  in  paper,  by  the  sworn  statement  of  Weich- 
mann that  Mrs.  Surratt  took  with  her  on  that  occasion  two  packages, 
both  of  which  were  wrapped  in  paper,  and  one  of  which  he  describes 
'as  a  small  package  about  six  inches  in  diameter?  The  attempt  was 
made  by  calling  Mrs.  Offut  to  prove  that  no  such  package  was  de- 
livered, but  it  failed;  she  merely  states  that  Mrs.  Surratt  delivered 
a  package  wrapped  in  paper  to  her  after  her  arrival  there,  and  before 
Lloyd  came  in,  which  was  laid  down  in  the  room.  But  whether  it 
was  the  package  about  which  Lloyd  testifies,  or  the  other  package  of 


the  two  about  which  Weichmann  testifies,  as  having  been  carried 
there  that  day  by  Mrs.  Surratt,  does  not  appear.  Neither  does  this 
witness  pretend  to  say  that  Mrs.  Surratt,  after  she  had  delivered  it 
to  her,  and  the  witness  had  laid  it  down  in  the  room,  did  not  again 
take  it  up,  if  it  were  the  same,  and  put  it  in  the  hands  of  Lloyd. 
She  only  knows  that  she  did  not  see  that  done;  but  she  did  see  Lloyd 
with  a  package  like  the  one  she  received  in  the  room  before  Mrs. 
Surratt  left.  How  it  came  into  his  possession  she  is  not  able  to  state; 
nor  what  the  package  was  that  .Mrs.  Surratt  first  handed  her;  nor 
which  of  the  packages  it  was  she  afterwards  saw  in  the  hands  of 
Lloyd . 

But  there  is  one  other  fact  in  this  case  that  puts  forever  at  reot  the 
question  of  the  guilty  participation  of  the  prisoner  Mrs.  Surratt  in 
this  conspiracy  and  murder;  and  that  is  that  Payne,  who  had  lodged 
four  days  in  her  house — who  during  all  that  time  had  sat  at  her  table, 
and  who  had  often  conversed  with  her — when  the  guilt  of  his  great 
crime  was  upon  him,  and  he  knew  not  where  else  he  could  so  safely 
go  to  find  a  co-conspirator,  arid  he  could  trust  none  that  was  not  like 
himself,  guilty,  with  even  the  knowledge  of  his  presence — under 
cover  of  darkness,  after  wandering  for  three  days  and  nights,  skulk- 
ing before  the  pursuing  officers  of  justice,  at  the  hour  of  midnight, 
found  his  way  to  the  door  of  Mrs.  Surratt,  rang  the  bell,  was  admit- 
ted, and  upon  being  asked,  "Whom  do  you  want  to  see,"  replied, 
"  Mrs.  Surratt."  He  was  then  asked  by  the  officer  Morgan,  what  he 
came  at  that  time  of  night  for?  to  which  he  replied,  ';  to  dig  a  gutter 
in  the  morning;  Mrs.  Surratt  had  sent  for  him."  Afterwards  he  said 
"Mrs.  Surratt  knew  he  was  a  poor  man  and  came  to  him."  Being 
asked  where  he  last  worked  ?  he  replied,  "  sometimes  on  T  street;" 
and  where  he  boarded?  he  replied,  "he  had  no  boarding-house,  and 
was  a  poor  man  who  got  his  living  with  the  pick,"  which  he  bore 
upon  his  shoulder,  having  stolen  it  from  the  intrenchments  of  the 
capital.  Upon  being  pressed  again  why  he  came  there  at  that  time 
of  night  to  go  to  work,  he  answered  that  he  simply  called  to  see  what 
time  he  should  go  to  work  in  the  morning.  Upon  being  told  by  the 
officer  who  fortunately  had  preceded  him  to  this  house  that  he  would 
have  to  go  to  the  provost  marshal's  office,  he  moved  and  did  not 
answer,  whereupon  Mrs.  Surratt  was  asked  to  step  into  the  hall  and 
state  whether  she  knew  this  man.  Raising  her  right  hand  she  ex- 
claimed, "Before  God,  sir,  I  have  not  seen  that  man  before;  I  have 
not  hired  him;  I  do  not  know  anything  about  him."  The  hall  was 
brilliantly  lighted. 


103 

If  not  one  word  had  been  said,  the  mere  act  of  Payne  in  flying 
to  her  house  for  shelter  would  have  borne  witness  against  her,  strong 
as  proofs  from  Holy  Writ.  But  when  she  denies,  after  hearing  his 
declarations,  that  she  had  sent  for  him,  or  that  she  had  gone  to  him 
and  hired  him,  and  calls  her  God  to  witness  that  she  had  never  seen 
him,  and  knew  nothing  of  him,  when,  in  point  of  fact,  she  had  seen 
him  for  four  successive  days  in  her  own  house,  in  the  same  clothing 
which  he  then  wore,  who  can  resist  for  a  moment  the  conclusion  that 
these  parties  were  alike  guilty  ? 

The  testimony  of  Spangler' s  complicity  is  conclusive  and  brief.  It 
was  impossible  to  hope  for  escape  after  assassinating  the  President, 
and  such  others  as  might  attend  him  in  Ford's  theatre,  without  ar- 
rangements being  first  made  to  aid  the  flight  of  the  assassin  and  to 
some  extent  prevent  immediate  pursuit. 

A  stable  was  to  be  provided  close  to  Ford's  theatre,  in  which  the 
horses  could  be  concealed  and  kept  ready  for  the  assassin's  use  when- 
ever the  murderous  blow  was  struck.  Accordingly,  Booth  secretly, 
through  Maddox,  hired  a  stable  in  rear  of  the  theatre  and  connecting 
with  it  by  an  alley,  as  early  as  the  1st  of  January  last ;  showing  that 
at  that  time  he  had  concluded,  notwithstanding  all  that  has  been  said 
to  the  contrary,  to  murder  the  President  in  Ford's  theatre  and  pro- 
vide the  means  for  immediate  and  successful  flight.  Conscious  of  his 
guilt,  he  paid  the  rent  for  this  stable  through  Maddox,  month  by 
month,  giving  him  the  money.  He  employed  Spangler,  doubtless  for 
the  reason  that  he  could  trust  him  with  the  secret,  as  a  carpenter  to 
fit  up  this  shed,  so  that  it  would  furnish  room  for  two  horses,  and  pro- 
vided the  door  with  lock  and  key.  Spangler  did  this  work  for  him. 
Then,  it  was  necessary  that  a  carpenter  having  access  to  the  theatre 
should  be  employed  by  the  assassin  to  provide  a  bar  for  the  outer 
door  of  the  passage  leading  to  the  President's  box,  so  that  when  he 
entered  upon  his  work  of  assassination  he  would  be  secure  from  in- 
terruption from  the  rear.  By  the  evidence,  it  is  shown  that  Spangler 
was  in  the  box  in  which  the  President  was  murdered  on  the  after- 
noon of  the  14th  of  April,  and  when  there  damned  the  President  and 
General  Grant,  and  said  the  President  ought  to  be  cursed,  he  had  got 
so  many  good  men  killed  ;  showing  not  only  his  hostility  to  the  Presi- 
dent, but  the  cause  of  it— that  he  had  been  faithful  to  his  oath  and 
had  resisted  that  great  rebellion  in  the  interest  of  which  his  life  was 
about  to  be  sacrificed  by  this  man  and  his  co-conspirators.  In  perform- 
ing the  work  which  had  doubtless  been  intrusted  to  him  by  Booth, 
a  mortise  was  cut  in  the  wall.  A  wooden  bar  was  prepared,  one  end 


104 

of  which  could  be  readily  inserted  in  the  mortise  and  the  other 
pressed  against  the  edge  of  the  door  on  the  inside  so  as  to  prevent  its 
being  opened.  Spangler  had  the  skill  and  the  opportunity  to  do  that 
work  and  all  the  additional  work  which  was  done. 

It  is  in  evidence  that  the  screws  in  "the  keepers"  to  the  locks 
on  each  of  the  inner  doors  of  the  box  occupied  by  the  President  were 
drawn.  The  attempt  has  been  made,  on  behalf  of  the  prisoner,  to 
show  that  this  was  done  some  time  before,  accidentally,  and  with  no 
bad  design,  and  had  not  been  repaired  by  reason  of  inadvertence; 
but  that  attempt  has  utterly  failed,  because  the  testimony  adduced 
for  that  purpose  relates  exclusively  to  but  one  of  the  two  inner  doors, 
while  the  fact  is,  that  the  screws  were  drawn  in  both,  and  the  addi- 
tional precaution  taken  to  cut  a  small  hole  through  one  of  these  doors 
through  which  the  party  approaching  and  while  in  the  private  pas- 
sage would  be  enabled  to  look  into  the  box  and  examine  the  exact 
posture  of  the  President  before  entering.  It  was  also  deemed  essen- 
tial, in  the  execution  of  this  plot,  that  some  one  should  watch  at  the 
outer  door,  in  the  rear  of  the  theatre,  by  which  alone  the  assassin 
could  hope  for  escape.  It  was  for  this  work  Booth  sought  to  employ 
Chester  in  January,  offering  $3,000  down  of  the  money  of  his  em- 
ployers, and  the  assurance  that  he  should  never  want.  What  Ches- 
ter refused  to  do  Spangler  undertook  and  promised  to  do.  When 
Booth  brought  his  horse  to  the  rear  door  of  the  theatre,  on  the  even- 
ing of  the  murder,  he  called  for  Spangler,  who  went  to  him,  when 
Booth  was  heard  to  say  to  him,  "Ned,  you'll  help  me  all  you  can, 
won't  you."  To  which  Spangler  replied,  "Oh,  yes." 

When  Booth  made  his  escape,  it  is  testified  by  Colonel  Stewart, 
who  pursued  him  across  the  stage  and  out  through  the  same  door, 
that  as  he  approached  it  some  one  slammed  it  shut.  Ritterspaugh, 
who  was  standing  behind  the  scenes  when  Booth  fired  the  pistol  and 
fled,  saw  Booth  run  down  the  passage  toward  the  back  door, and  pur- 
sued him;  but  Booth  drew  his  knife  upon  him  and  passed  oat,  slam- 
ming the  door  after  him.  Ritterspaugh  opened  it  and  went  through, 
leaving  it  open,  behind  him,  leaving  Spangler  inside,  and  in  a  position 
from  which  he  readily  could  have  reached  the  door.  Ritterspangh 
also  states  that  very  quickly  after  he  had  passed  through  this  door  ho 
was  followed  by  a  large  man,  the  first  who  followed  him,  and  who 
was,  doubtless,  Colonel  Stewart.  Stewart  is  very  positive  that  ho 
saw  this  door  slammed;  that  he  himself  was  constrained  to  open  it, 
and  had  some  difficulty  in  opening  it.  He  also  testifies  that  as  he  ap- 
proached the  door  a  man  stood  near  enough  to  have  thrown  it  to  with 


105 

his  hand,  and  this  man,  the  witness  believes,  was  the  prisoner  Span- 
gler.  Ritterspaugh  has  sworn  that  he  left  the  door  open  behind  him 
when  he  went  out,  and  that  he  was  first  followed  by  the  large  man, 
Colonel  Stewart.  Who  slammed  that  door  behind  Ritterspaugh?  It 
was  not  Ritterspaugh ;  it  could  not  have  been  Booth,  for  Ritterspaugh 
swears  that  Booth  was  mounting  his  horse  at  the  time;  and  Stewart 
swears  that  Booth  was  upon  his  horse  when  he  came  out.  That  it  was 
Spangler  who  slammed  the  door  after  Ritterspaugh  may  not  only  be 
inferred  from  Stewart's  testimony,  but  it  is  made  very  clear  by  his  own 
conduct  afterwards  upon  the  return  of  Ritterspaugh  to  the  stage. 
The  door  being  then  open,  and  Ritterspaugh  being  asked  which  way 
Booth  went,  had  answered.  Ritterspaugh  says:  "Then  I  came  back 
on  the  stage,  where  I  had  left  Edward  Spangler ;  he  hit  me  on  the 
face  with  his  hand  and  said,  'Don't  say  which  way  he.  went'  I 
asked  him  what  he  meant  by  slapping  me  in  the  mouth?  He  said, 
'For  God's  sake,  shut  up.'  " 

The  testimony  of  Withers  is  adroitly  handled  to  throw  doubt  upon 
these  facts.  It  cannot  avail,  for  Withers  says  he  was*  knocked  in  the 
scene  by  Booth,  and  when  he  "come  to"  he  got  a  side  view  of  him. 
A  man  knocked  down  and  senseless,  on  "coming  to'7  might  mistake 
anybody  by  a  side  view  for  Booth. 

An  attempt  has  been  made  by  the  defence  to  discredit  this  testi- 
mony of  Ritterspaugh,  by  showing  his  contradictory  statements  to 
Gifford,  Carlan,  and  Lamb,  neither  of  whom  do  in  fact  contradict 
him,  but  substantially  sustain  him.  None  but  a  guilty  man  would 
have  met  the  witness  with  a  blow  for  stating  which  way  the  assassin 
had  gone.  A  like  confession  of  guilt  was  made  by  Spangler  when 
the  witness  Miles,  the  same  evening,  and  directly  after  the  assassina- 
tion, came  to  the  back  door,  where  Spangler  was  standing  with  others, 
and  asked  Spangler  who  it  was  that  held  the  horse,  to  which  Spangler 
replied:  "Hush;  don' t  say  anything  about  it.'?  He  confessed  his 
guilt  again  when  he  denied  to  Mary  Anderson  the  fact,  proved  here 
beyond  all  question,  that  Booth  had  called  him  when  he  came  to  that 
door  with  his  horse,  using  the  emphatic  words,  "No,  he  did  not;  he 
did  not  call  me."  The  rope  comes  to  bear  witness  against  him,  as 
did  the  rope  which  Atzerodt  and  Herold  and  John  H.  Surratt  had 
carried  to  Surrattsville  and  deposited  there  with  the  carbines. 

It  is  only  surprising  that  the  ingenious  counsel  did  not  attempt  to 
explain  the  deposit  of  the  rope  at  Surrattsville  by  the  same  method 
that  he  adopted  in  explanation  of  the  deposit  of  this  rope,  some 
sixty  feet  long,  found  in  the  carpet-sack  of  Spangler,  unaccounted  for 


106 

save  by  some  evidence  which  tends  to  show  that  he  may  have  carried 
it  away  from  the  theatre. 

It  is  not  needful  to  take  time  in  the  recapitulation  of  the  evidence, 
which  shows  conclusively  that  David  E.  Herold  was  one  of  these  con- 
spirators. His  continued  association  with  Booth,  with  Atzerodt,  his 
visits  to  Mrs.  Surratt' s,  his  attendance  at  the  theatre  with  Payne, 
Surratt,  and  Atzerodt,  his  connexion  with  Atzerodt  on  the  evening 
of  the  murder,  riding  with  him  on  the  street  in  the  direction  of  and 
near  to  the  theatre  at  the  hour  appointed  for  the  work  of  assassina- 
tion, and  his  final  flight  and  arrest,  show  that  he,  in  common  with  all 
the  other  parties  on  trial,  and  all  the  parties  named  upon  your  record 
not  upon  trial,  had  combined  and  confederated  to  kill  and  murder  in 
the  interests  of  the  rebellion,  as  charged  and  specified  against  them. 

That  this  conspiracy  was  entered  into  by  all  these  parties,  both 
present  and  absent,  is  thus  proved  by  the  acts,  meetings,  declara- 
tions, and  correspondence  of  all  the  parties,  beyond  any  doubt  what- 
ever. True  it  is  circumstantial  evidence,  but  the  court  will  remember 
the  rule  before  recited,  that  circumstances  cannot  lie;  that  they  are 
held  sufficient  in  every  court  where  justice  is  judicially  administered 
to  establish  the  fact  of  a  conspiracy.  I  shall  take  no  further  notice 
of  the  remark  made  by  the  learned  counsel  who  opened  for  the  defence, 
and  which  has  been  followed  by  several  of  his  associates,  that,  under 
the  Constitution,  it  requires  two  witnesses  to  prove  the  overt  act  of  high 
treason,  than  to  say,  this  is  not  a  charge  of  high  treason,  but  of  a  treason- 
able conspiracy,  in  aid  of  a  rebellion,  with  intent  to  kill  and  murder 
the  executive  officer  of  the  United  States,  and  commander  of  its  armies, 
and  of  the  murder  of  the  President  in  pursuance  of  that  conspiracy, 
and  with  the  intent  laid,  &c.  Neither  by  the  Constitution,  nor  by 
the  rules  of  the  common  law,  is  any  fact  connected  with  this  allega- 
tion required  to  be  established  by  the  testimony  of  more  than  one 
witness.  I  might  say,  however,  that  every  substantive  averment 
against  each  of  the  parties  named  upon  this  record  has  been  estab- 
lished by  the  testimony  of  more  than  one  witness. 

That  the  several  accused  did  enter  into  this  conspiracy  with  John 
Wilkes  Booth  and  John  H.  Surratt  to  murder  the  officers  of  this  gov- 
ernment named  upon  the  record,  in  pursuance  of  the  wishes  of  their 
employers  and  instigators  in  Richmond  and  Canada,  and  with  intent 
thereby  to  aid  the  existing  rebellion  and  subvert  the  Constitution  and 
laws  of  the  United  States,  as  alleged,  is  no  longer  an  open  question. 

The  intent  as  laid  was  expressly  declared  by  Sanders  in  the  meet- 
ing of  the  conspirators  at  Montreal  in  February  last,  by  Booth  in 


107 

Virginia  and  New  York,  and  by  Thompson  to  Conover  and  Mont- 
gomery ;  but  if  there  were  no  testimony  directly  upon  this  point,  the 
law  would  presume  the  intent,  for  the  reason  that  such  was  the 
natural  and  necessary  tendency  and  manifest  design  of  the  act  itself. 

The  learned  gentleman  (Mr.  Johnson)  says  the  government  has 
survived  the  assassination  of  the  President,  and  thereby  would  have 
you  infer  that  this  conspiracy  was  not  entered  into  and  attempted  to 
be  executed  with  the  intent  laid.  With  as  much  show  of  reason  it 
might  be  said  that  because  the  government  of  the  United  States  has 
survived  this  unmatched  rebellion,  it  therefore  results  that  the  rebel 
conspirators  waged  war  upon  the  government  with  no  purpose  or 
intent  thereby  to  subvert  it.  By  the  law  we  have  seen  that  without 
any  direct  evidence  of  previous  combination  and  agreement  between 
these  parties,  the  conspiracy  might  be  established  by  evidence  of  the 
acts  of  the  prisoners,  or  of  any  others  with  whom  they  co-operated, 
concurring  in  the  execution  of  the  common  design.  (Roscoe,  416.) 

Was  there  co-operation  between  the  several  accused  in  the  exe- 
cution of  this  conspiracy  ?  That  there  was  is  as  clearly  established 
by  the  testimony  as  is  the  fact  that  Abraham  Lincoln  was  killed  and 
murdered  by  John  Wilkes  Booth.  The  evidence  shows  that  all  of 
the  accused,  save  Mudd  and  Arnold,  were  in  Washington  on  the  14th 
of  April,  the  day  of  the  assassination,  together  with  John  Wilkes 
Booth  and  John  H.  Surratt ;  that  on  that  day  Booth  had  a  secret 
interview  with  the  prisoner  Mary  E.  Surratt;  that  immediately  there- 
after she  went  to  Surrattsville  to  perform  her  part  of  the  preparation 
necessary  to  the  successful  execution  of  the  conspiracy,  and  did 
make  that  preparation  ;  that  John  H.  Surratt  had  arrived  here  from 
Canada,  notifying  the  parties  that  the  price  to  be  paid  for  this 
great  crime  had  been  provided  for,  at  least  in  part,  by  the  deposit 
receipts  of  April  6th  for  $180,000,  procured  by  Thompson  of  the 
Ontario  Bank,  Montreal,  Canada:  that  he  was  also  prepared  to  keep 
watch,  or  strike  a  blow,  and  ready  for  the  contemplated  flight;  that 
Atzerodt,  on  the  afternoon  of  that  day,  was  seeking  to  obtain  a  horse, 
the  better  to  secure  his  own  safety  by  flight,  after  he  should  have 
performed  the  task  which  he  had  voluntarily  undertaken  by  contract 
in  the  conspiracy — the  murder  of  Andrew  Johnson,  then  Vice  Presi- 
dent of  the  United  States;  that  he  did  procure  a  horse  for  that  pur- 
pose at  Naylor's,  and  was  seen  about  nine  o'clock  in  the  evening  to 
ride  to  the  Kirkwood  House,  where  the  Vice  President  then  was,  dis- 
mount, and  enter.  At  a  previous  hour  Booth  was  in  the  Kirkwood 


108 

House,  and  left  his  card,  now  in  evidence,  doubtless  intended  to  be 
sent  to  the  room  of  the  Vice  President,  and  which  was  in  these  words: 
"Don't  wish  to  disturb  you.  Are  you  at  home  ?  J.  Wilkes  Booth." 
Atzerodt,  when  he  made  application  at  Brooks' s  in  the  afternoon  for 
the  horse,  said  to  Weichmann,  who  was  there,  he  was  going  to  ride 
in  the  country,  and  that  "he  was  going  to  get  a  horse  and  send  for 
Payne."  He  did  get  a  horse  for  Payne,  as  well  as  for  himself;  for  it 
is  proven  that  on  the  12th  he  was  seen  in  Washington  riding  the 
horse  which  had  been  procured  by  Booth,  in  company  with  Mudd, 
last  November,  from  Gardner.  A  similar  horse  was  tied  before  the 
door  of  Mr.  Seward  on  the  night  of  the  murder,  was  captured  after 
the  flight  of  Payne,  who  was  seen  to  ride  away,  and  which  horse  is 
now  identified  as  the  Gardner  horse.  Booth  also  procured  a  horse  on 
the  same  day,  took  it  to  his  stable  in  the  rear  of  the  theatre,  where 
he  had  an  interview  with  Spangler,  and  where  he  concealed  it. 
Herold,  too,  obtained  a  horse  in  the  afternoon,  and  was  seen  between 
nine  and  ten  o'clock  riding  with  Atzerodt  down  the  Avenue  from  the 
Treasury,  then  up  Fourteenth  and  down  F  street,  passing  close  by 
Ford's  theatre. 

O'Laughlin  had  come  to  Washington  the  day  before,  had  sought 
out  his  victim  (General  Grant)  at  the  house  of  the  Secretary  of  War, 
that  he  might  be  able  with  certainty  to  identify  him,  and  at  the  very 
hour  when  these  preparations  were  going  on  was  lying  in  wait  at 
Rullman's,  on  the  Avenue,  keeping  watch,  and  declaring,  as  he  did, 
at  about  10  o'clock  p.  m.,  when  told  that  the  fatal  blow  had  been 
struck  by  Booth,  "  I  don't  believe  Booth  did  it."  During  the  day, 
and  the  night  before,  he  had  been  visiting  Booth,  and  doubtless  en- 
couraging him,  and  at  that  very  hour  was  in  position,  at  a  convenient 
distance,  to  aid  and  protect  him  in  his  flight,  as  well  as  to  execute 
his  own  part  of  the  conspiracy  by  inflicting  death  upon  General 
Grant,  who  happily  was  not  at  the  theatre  nor  in  the  city,  having 
left  the  city  that  day.  Who  doubts  that,  Booth  having  ascertained 
in  the  course  of  the  day  that  General  Grant  would  not  be  present  at 
the  theatre,  O'Laughlin,  who  was  to  murder  General  Grant,  instead 
of  entering  the  box  with  Booth,  was  detailed  to  lie  in  wait,  and  watch 
and  support  him. 

His  declarations  of  his  reasons  for  changing  his  lodgings  here  and 
in  Baltimore,  after  the  murder,  so  ably  and  so  ingeniously  presented 
in  the  argument  of  his  learned  counsel,  (Mr.  Cox,)  avail  nothing 
before  the  blasting  fact  that  he  did  change  his  lodgings,  and  de- 
clared "he  knew  nothing  of  the  affair  whatever."  O'Laughlin, 


109 

who  lurked  here,  conspiring  daily  with  Booth  and  Arnold  for 
six  weeks  to  do  this  murder,  declares  "he  knew  nothing  of  the 
affair."  O'Laughlin,  who  said  he  was  "in  the  oil  business,"  which 
Booth  and  Surratt,  and  Payne  and  Arnold,  have  all  declared 
meant  this  conspiracy,  says  he  "knew  nothing  of  the  affair." 
O'Laughlin,  to  whom  Booth  sent  the  despatches  of  the  13th  and  27th 
of  March— O'Laughlin,  who  is  named  in  Arnold's  letter  as  one  of 
the  conspirators,  and  who  searched  for  General  Grant  on  Thursday 
night,  laid  in  wait  for  him  on  Friday,  was  defeated  by  that  Provi- 
dence "which  shapes  our  ends,"  and  laid  in  wait  to  aid  Booth 
and  Payne,  declares  "he  knows  nothing  of  the  matter."  Such  a  denial 
is  as  false  and  inexcusable  as  Peter's  denial  of  our  Lord. 

Mrs.  Surratt  had  arrived  at  home,  from  the  completion  of  her  part 
in  the  plot,  about  half-past  eight  o'clock  in  the  evening.  A  few 
moments  afterwards  she  was  called  to  the  parlor  and  there  had  a 
private  interview  with  some  one  unseen,  but  whose  retreating  foot- 
steps were  heard  by  the  witness  Weichmann.  This  was  doubtless 
the  secret  and  last  visit  of  John  H.  Surratt  to  his  mother,  who  had 
instigated  and  encouraged  him  to  strike  this  traitorous  and  murderous 
blow  against  his  country. 

While  all  these  preparations  were  going  on,  Mudd  was  awaiting 
the  execution  of  the  plot,  ready  to  faithfully  perform  his  part  in  se- 
curing the  safe  escape  of  the  murderers.  Arnold  was  at  his  post  at 
Fortress  Monroe,  awaiting  the  meeting  referred  to  in  his  letter  of 
March  27th,  wherein  he  says  they  were  not  "to  meet  for  a  month  or 
so,"  which  month  had  more  than  expired  on  the  day  of  the  murder, 
for  his  letter  and  the  testimony  disclose  that  this  month  of  suspension 
began  to  run  from  about  the  first  week  in  March.  He  stood  ready 
with  the  arms  which  Booth  had  furnished  him  to  aid  the  escape  of  the 
murderers  by  that  route,  and  secure  their  communication  with. their 
employers.  He  had  given  the  assurance  in  that  letter  to  Booth,  that 
although  the  government  "suspicioned  them,"  and  the  undertak- 
ing was  "becoming  complicated,"  yet  "a  time  more  propitious  would 
arrive"  for  the  consummation  of  this  conspiracy  in  wtiich  he  "was 
one"  with  Booth,  and  when  he  would  "be  better  prepared  to  again 
be  with  him." 

Such  were  the  preparations.  The  horses  were  in  readiness  for  the 
flight ;  the  ropes  were  procured,  doubtless  for  the  purpose  of  tying 
the  horses  at  whatever  point  they  might  be  constrained  to  delay  and 
to  secure  their  boats  to  their  moorings  in  making  their  way  across  the 
Potomac.  The  five  murderous  camp  knives,  the  two  carbines,  the 


110 

eight  revolvers,  the  Derringer,  in  court  and  identified,  all  were  ready 
for  the  work  of  death.  The  part  that  each  had  played  has  already 
been  in  part  stated  in  this  argument,  and  needs  no  repetition. 

Booth  proceeded  to  the  theatre  about  9  o'clock  in  the  evening,  at 
the  same  time  that  Atzerodt  and  Payne  and  Herold  were  riding  the 
streets,  while  Surratt,  having  parted  with  his  mother  at  the  brief  in- 
terview in  her  parlor,  from  which  his  retreating  steps  were  heard, 
was  walking  the  Avenue,  booted  and  spurred,  and  doubtless  consult- 
ing with  O'Laughlin.  When  Booth  reached  the  rear  of  the  theatre, 
he  called  Spangler  to  him,  (whose  denial  of  that  fact,  when  charged  with 
it,  as  prof  en  by  three  witnesses,  is  very  significant,)  and  received  from 
Spangler  his  pledge  to  help  him  all  he  could,  when  with  Booth  he 
entered  the  theatre  by  the  stage-door,  doubtless  to  see  that  the  way  was 
clear  from  the  box  to  the  rear  door  of  the  theatre,  and  look  upon  their 
victim,  whose  exact  position  they  could  study  from  the  stage.  After  this 
view,  Booth  passes  to  the  street,  in  front  of  the  theatre,  where,  on 
the  pavement  with  other  conspirators  yet  unknown,  among  them  one 
described  as  a  low-browed  villain,  he  awaits  the  appointed  moment. 
Booth  himself,  impatient,  enters  the  vestibule  of  the  theatre  from  the 
front,  and  asks  the  time.  He  is  referred  to  the  clock,  and  returns. 
Presently,  as  the  hour  of  10  o'clock  approached,  one  of  his  guilty 
associates  called  the  time :  they  wait ;  again,  as  the  moments  elapsed, 
this  conspirator  upon  watch  called  the  time;  again,  as  the  appointed 
hour  drawsdigh,  he  calls  the  time;  and  finally,  when  the  fatal  moment 
arrives,  he  repeats  in  a  louder  tone,  "Ten  minutes  past  10  o'clock." 
Ten  minutes  past  10  o'clock  !  The  hour  has  come  when  the  red 
right  hand  of  these  murderous  conspirators  should  strike,  and  the 
dreadful  deed  of  assassination  be  done. 

Booth,  at  the  appointed  moment,  entered  the  theatre,  ascended  to 
the  dress-circle,  passed  to  the  right,  paused  a  moment,  looking  down, 
doubtless  to  see  if  Spangler  was  at  his  post,  and  approached  the  outer 
door  of  the  close  passage  leading  to  the  box  occupied  by  the  Presi- 
dent, pressed  it  open,  passed  in,  and  closed  the  passage  door  behind 
him.  Spangler' s  bar  was  in  its  place,  and  was  readily  adjusted  by  Booth 
in  the  mortise,  and  pressed  against  the  inner  side  of  the  door,  so  that 
he  was  secure  from  interruption  from  without.  He  passes  on  to  the 
next  door,  immediately  behind  the  President,  and  there  stopping, 
looks  through  the  aperture  in  the  door  into  the  President's  box,  and 
deliberately  observes  th^e  precise  position  of  his  victim,  seated  in  the 
chair  which  had  been  prepared  by  the  conspirators  as  the  altar  for 
the  sacrifice,  looking  calmly  and  quietly  down  upon  the  glad  and 


Ill 

grateful  people  whom  by  his  fidelity  he  had  saved  from  the  peril  which 
had  threatened  the  destruction  of  their  government,  and  all  they  held 
dear  this  side  of  the  grave,  and  whom  he  had  come  upon  invitation  to 
greet  with  his  presence,  with  the  words  still  lingering  upon  his  lips 
which  he  had  uttered  with  uncovered  head  and  uplifted  hand  before 
God  and  his  country,  when  on  the  4th  of  last  March  he  took  again  the 
oath  to  preserve,  protect,  and  defend  the  Constitution,  declaring  that 
he  entered  upon  the  duties  of  his  great  office  "  with  malice  toward 
none — with  charity  for  all."  In  a  moment  more,  strengthened  by  the 
knowledge  that  his  co-conspirators  were  all  at  their  posts,  seven  at 
least  of  them  present  in  the  city,  two  of  them,  Mudd  and  Arnold,  at 
their  appointed  places,  watching  for  his  coming,  this  hired  assassin 
moves  stealthily  through  the  door,  the  fastenings  of  which  had  been 
removed  to  facilitate  his  entrance,  fires  upon  his  victim,  and  the  mar- 
tyr spirit  of  Abraham  Lincoln  ascends  to  God. 

"Treason  has  done  his  worst;  nor  steel,  nor  poison, 
Malice  domestic,  foreign  levy,  nothing 
Can  touch  him  further." 

At  the  same  hour,  when  these  accused  and  their  co-conspirators  in 
Richmond  and  Canada,  by  the  hand  of  John  Wilkes  Booth,  inflicted 
this  mortal  wound  which  deprived  the  republic  of  its  defender,  and 
filled  this  land  from  ocean  to  ocean  with  a  strange,  great  sorrow, 
Payne,  a  very  demon  in  human  form,  with  the  words  of  falsehood 
upon  his  lips,  that  he  was  the  bearer  of  a  message  from  th'e  physician 
of  the  venerable  Secretary  of  State,  sweeps  by  his  servant,  encounters 
his  son,  who  protests  that  the  assassin  shall  not  disturb  his  father,  pros- 
trate on  a  bed  of  sickness,  and  receives  for  answer  the  assassin's  blow 
from  the  revolver  in  his  hand,  repeated  again  and  again,  rushes  into  the 
room,  is  encountered  by  Major  Seward,  inflicts  Wound  after  wound 
upon  him  with  his  murderous  knife,  is  encountered  by  Hansell  and 
Robinson,  each  of  whom  he  also  wounds,  springs  upon  the  defenceless 
and  feeble  Secretary  of  State,  stabs  first  on  one  side  of  his  throat, 
then  on  the  other,  again  in  the  face,  and  is  only  prevented  from  lite- 
rally hacking  out  his  life  by  the  persistence  and  courage  of  the 
attendant  Robinson.  He  turns  to  flee,  and,  his  giant  arm  and  mur- 
derous hand  for  a  moment  paralyzed  by  the  consciousness  of  guilt, 
he  drops  his  weapons  of  death,  one  in  the  house,  the  other  at  the 
door,  where  they  were  taken  up,  and  are  here  now  to  bear  witness 
against  him.  He  attempts  escape  on  the  horse  which  Booth  and 
Mudd  had  procured  of  Gardner — with  what  success  has  already  been 
stated. 


112 

Atzerodt,  near  midnight,  returns  to  the  stable  of  Naylor  the  horse 
which  he  had  procured  for  this  work  of  murder,  having  been  inter- 
rupted in  the  execution  of  the  part  assigned  him  at  the  Kirkwood 
House  by  the  timely  coming  of  citizens  to  the  defence  of  the  Vice 
President,  and  creeps  into  the  Pennsylvania  House  at  2  o'clock  in  the 
morning  with  another  of  the  conspirators,  yet  unknown.  There  he 
remained  until  about  5  o'clock,  when  he  left,  found  his  way  to 
Georgetown,  pawned  one  of  his  revolvers,  now  in  court,  and  fled 
northward  into  Maryland. 

He  is  traced  to  Montgomery  county,  to  the  house  of  Mr.  Metz,  on 
the  Sunday  succeeding  the  murder,  where,  as  is  proved  by  the  tes- 
timony of  three  witnesses,  he  said  that  if  the  man  that  was  to  follow 
General  Grant  had  followed  him,  it  was  likely  that  Grant  was  shot. 
To  one  of  these  witnesses  (Mr.  Layman)  he  said  he  did  not  think 
Grant  had  been  killed:  or  if  he  had  been  killed,  he  was  killed  by  a 
man  who  got  on  the  cars  at  the  same  time  that  Grant  did  ;  thus  dis- 
closing most  clearly  that  one  of  his  co-conspirators  was  assigned  the 
task  of  killing  and  murdering  General  Grant,  and  that  Atzerodt  knew 
that  General  Grant  had  left  the  city  of  Washington,  a  fact  which  is 
not  disputed,  on  the  Friday  evening  of  the  murder,  by  the  evening 
train.  Thus  this  intended  victim  of  the  conspiracy  escaped,  for  that 
night,  the  knives  and  revolvers  of  Atzerodt,  and  O'Laughliu,  and  Payne, 
and  Herold,  and  Booth,  and  John  H.  Surratt,  and,  perchance,  Harper 
and  C aid  well,  and  twenty  others,  who  were  then  here  lying  in  wait 
for  his  life. 

In  the  mean  time,  Booth  and  Herold,  taking  the  route  before  agreed 
upon,  make  directly  after  the  assassination  for  the  Anacostia  bridge. 
Booth  crosses  first,  gives  his  name,  passes  the  guard,  and  is  speedily 
followed  by  Herold.  They  make  their  way  directly  to  Surrattsville, 
where  Herold  calls  to  Lloyd,  "Bring  out  those  things,"  showing  that 
there  had  been  communication  between  them  and  Mrs.  Surratt  after 
her  return.  Both  the  carbines  being  in  readiness,  according  to  Mary 
E.  Surratt' s  directions,  both  were  brought  out.  They  took  but  one. 
Booth  declined  to  carry  the  other,  saying  that  his  limb  was  broken. 
They  then  declared  that  they  had  murdered  the  President  and  the  Sec- 
retary of  State.  They  then  make  their  way  directly  to  the  house  of  the 
prisoner  Mudd,  assured  of  safety  and  security.  They  arrived  early  in 
the  morning  before  day,  and  no  man  knows  at  what  hour  they  left. 
Herold  rode  towards  Bryan  town  with  Mudd  about  3  o'clock  that  after- 
noon, in  the  vicinity  of  which  place  he  parted  with  him,  remaining  in  the 
swamp,  and  was  afterwards  seen  returning  the  same  afternoon  in  the 


113 

direction  of  Mudd's  house  ;  about  which'time,  a  little  before  sundown, 
Mudd  returned  from  Bryantown  towards  his  home.  This  village  at 
the  -time  Mudd  was  in  it  was  thronged  with  soldiers  in  pursuit  of  the 
murderers  of  the  President,  and  although  great  care  has  been  taken 
by  the  defence  to  deny  that  any  one  said  in  the  presence  of  Dr. 
Mudd,  either  there  or  elsewhere  on  that  day,  who  had  committed  this 
crime,  yet  it  is  in  evidence  by  two  witnesses,  whose  truthfulness  no 
man  questions,  that  upon  Mudd's  return  to  his  own  house,  that  after- 
noon, he  stated  that  Booth  was  the  murderer  of  the  President,  and 
Boyle  the  murderer  of  Secretary  Seward,  but  took  care  to  make  the 
further  remark  that  Booth  had  brothers,  and  he  did  not  know  which 
of  them  had  done  the  act.  When  did  Dr.  Mudd  learn  that  Booth 
had  brothers  ?  And  what  is  still  more  pertinent  to  this  inquiry,  from 
whom  did  he  learn  that  either  John  Wilkes  Booth  or  any  of  his 
brothers  had  murdered  the  President  ?  It  is  clear  that  Booth  remained 
in  his  house  until  some  time  in  the  afternoon  of  Saturday  ;  that 
Herold  left  the  house  alone,  as  one  of  the  witnesses  states,  being  seen 
to  pass  the  window;  that  he  alone  of  these  two  assassins  was  in  the 
company  of  Dr.  Mudd  on  his  way  to  Bryantown.  It  does  not  appear 
when  Herold  returned  to  Mudd' s  house.  It  is  a  confession  of  Dr.  Mudd* 
himself,  proven  by  one  of  the  witnesses,  that  Booth  left  his  house  on' 
crutches,  and  went  in  the  direction  of  the  swamp.  How  long  he  re- 1 
mained  there,  and  what  became  of  the  horses  which  Booth  and  Herold/ 
rode  to  his  house,  and  which  were  put  into  his  stable,  are  facts  no- 
where disclosed  by  the  evidence.  The  owners  testify  that  they  have 
never  seen  the  horses  since.  The  accused  give  no  explanation  of 
the  matter,  and  when  Herold  and  Booth  were  captured  they  had 
not  these  horses  in  their  possession.  How  comes  it  that,  on  Mudd's 
return  from  Bryantowu,  on  the  evening  of  Saturday,  in  his  conver- 
sation with  Mr.  Hardy  and  Mr.  Farrell,  the  witnesses  before  referred 
to,  he  gave  the  name  of  Booth  as  the  murderer  of  the  President  and 
that  of  Boyle  as  the  murderer  of  Secretary  Seward  and  his  son,  and 
carefully  avoided  intimating  to  either  that  Booth  had  come  to  his 
house  early  that  day,  and  had  remained  there  until  the  afternoon; 
that  he  left  him  in  his  house  and  had  furnished  him  a  razor  with 
which  Booth  attempted  to  disguise  himself  by  shaving  off  his  mous- 
tache? How  comes  it,  also,  that,  upon  being  asked  by  those  ^two 
witnesses  whether  the  Booth  who  killed  the  President  was  the  one 
who  had  been  there  last  fall,  he  answered  that  he  did  not  know 
whether  it  was  that  man  or  one  of  his  brothers,  but  he  understood 
he  had  some  brothers,  and  added,  that  if  it  was  the  Booth  who  was 
SB 


114 

there  last  fall,  lie  knew  that  one,  but  concealed  the  fact  that  this  man 
had  been  at  his  house  on  that  day  and  was  then  at  his  house,  and 
had  attempted,  in  his  presence,  to  disguise  his  person?  He. was 
sorry,  very  sorry,  that  the  thing  had  occurred,  but  not  so  sorry 
as  to  be  willing  to  give  any  evidence  to  these  two  neighbors,  who 
were  manifestly  honest  and  upright  men,  that  the  murderer  had 
been  harbored  in  his  house  all  day,  and  was  probably  at  that 
moment,  as  his  own  subsequent  confession  shows,  lying  concealed 
in  his  house  or  near  by,  subject  to  his  call.  This  is  the  man 
who  undertakes  to  show  by  his  own  declaration,  offered  in  evi- 
dence against  my  protest,  of  what  he  said  afterwards,  on  Sunday 
afternoon,  the  16th,  to  his  kinsman  Dr.  George  D.  Mudd,  to  whom  he 
then  stated  that  the  assassination  of  the  President  was  a  most 
damnable  act — a  conclusion  in  which  most  men  will  agree  with  him, 
and  to  establish  which  his  testimony  was  not  needed.  But  it  is  to 
te  remarked  that  this  accused  did  not  intimate  that  the  man  whom 
he  knew  the  evening  before  was  the  murderer  had  found  refuge  in 
his  house,  had  disguised  his  person,  and  sought  concealment  in  the 
swamp  upon  the  crutches  which  he  had  provided  for  him.  Why  did 
he  conceal  this  fact  from  his  kinsman?  After  the  church  services 
were  over,  however,  in  another  conversation  on  their  way  home,  he 
did  tell  Dr.  George  Mudd  that  two  suspicious  persons  had  been  at 
his  house,  who  had  come  there  a  little  before  daybreak  on  Saturday 
morning  ;  that  one  of  them  had  a  broken  leg,  which  he  bandaged  ; 
that  they  got  something  to  eat  at  his  house  ;  that  they  seemed  to  be 
laboring  under  more  excitement  than  probably  would  result  from  the 
injury  ;  that  they  said  they  came  from  Bryantown,  and  inquired  the 
way  to  Parson  Wilmer's  ;  that  while  at  his  house  one  of  them  called 
for  a  razor  and  shaved  himself.  The  witness  says,  "I  do  not  remem- 
ber whether  he  said  that  this  party  shaved  off  his  whiskers  or  his 
moustache,  but  he  altered  somewhat,  or  probably  materially,  his  fea- 
tures." Finally,  the  prisoner,  Dr.  Mudd,  told  this  witness  that  he, 
in  company  with  the  younger  of  the  two  men,  went  down  the  road 
towards  Bryantown  in  search  of  a  vehicle  to  take  the  wounded  man 
away  from  his  house.  How  comes  it  that  he  concealed  in  this  con- 
versation the  fact  proved,  that  he  went  with  Herold  towards  Bryan- 
town  and  left  Herold  outside  of  the  town  ?  How  comes  it  that  in  this 
sectmd  conversation,  on  Sunday,  insisted  upon  here  with  such  perti- 
nacity as  evidence  for  the  defence,  but  which  had  never  been  called 
for  by  the  prosecution,  he  concealed  from  his  kinsman  the  fact  which 
he  had  disclosed  the  day  before  to  Hardy  and  Farrell,  that  it  was 


115 

Booth  who  assassinated  the  President,  and  the  fact  which  is  now  dis- 
closed by  his  other  confessions  given  in  evidence  for  the  prosecution 
that  jt  was  Booth  whom  he  had  sheltered,  concealed  in  his  house  and 
aided  to  his  hiding  place  in  the  swamp  ?  He  volunteers  as  evidence 
his  further  statement,  however,  to  this  witness,  that  on  Sunday  eve- 
ning he  requested  the  witness  to  state  to  the  military  authorities  that 
two  suspicious  -persons  had  been  at  his  house,  and  see  if  anything 
could  be  made  of  it.  He  did  not  tell  the  witness  what  became  of 
Herold,  and  where  he  parted  with  him  on  the  way  to  Bryantown. 
How  comes  it  that  when  he  was  in  Bryantown  on  the  Saturday  eve- 
ning before,  when  he  knew  that  Booth  was  then  at  his  house,  and 
that  Booth  was  the  murderer  of  the  President,  he  did  not  himself 
state  it  to  the  military  authorities  then  in  that  village,  as  he  well 
knew  ?  It  is  difficult  to  see  what  kindled  his  suspicions  on  Sunday, 
if  none  were  in  his  mind  on  Saturday,  when  he  was  in  possession  of 
the  fact  that  Booth  had  murdered  the  President,  and  was  then  secre- 
ting and  disguising  himself  in  the  prisoner's  own  house. 

His  conversation  with  Gardner  on  the  same  Sunday  at  the  church 
is  also  introduced  here  to  relieve  him  from  the  overwhelming  evi- 
dences of  his  guilt.  He  communicates  nothing  to  Gardner  of  the 
fact  that  Booth  had  been  in  his  house ;  nothing  of  the  fact  that  he 
knew  the  day  before  that  Booth  had  murdered  the  President ;  nothing 
of  the  fact  that  Booth  had  disguised  or  attempted  to  disguise  himself  j 
nothing  of  the  fact  that  he  had  gone  with  Booth's  associate,  Herold, 
in  search  of  a  vehicle,  the  more  speedily  to  expedite  their  flight ; 
nothing  of  the  fact  that  Booth  had  found  concealment  in  the  woods 
and  swamp  near  his  house,  upon  the  crutches  which  he  had  furnished 
him.  He  contents  himself  with  merely  stating  "that  we  ought  to 
raise  immediately  a  home  guard,  to  hunt  up  all  suspicious  persons 
passing  through  our  section  of  country  and  arrest  them,  for  there 
were  two  suspicious  persons  at  my  house  yesterday  morning." 

It  would  have  looked  more  like  aiding  justice  and  arresting  felons 
if  he  had  put  in  execution  his  project  of  a  home  guard  on  Saturday, 
and  made  it  effective  by  the  arrest  of  the  man  then  in  his  house  who 
had  lodged  with  him  last  fall,  with  whom  he  had  gone  to  purchase 
one  of  the  very  horses  employed  in  this  flight  after  the  assassination, 
whom  he  had  visited  last  winter  in  Washington,  and  to  whom  he  had 
pointed  out  the  very  route  by  which  he  had  escaped  by  way  of  his 
house,  whom  he  had  again  visited  on  the  3d  of  last  March,  prepara- 
tory to  the  commission  of  this  great  crime,  and  who  he  knew,  when 
he  sheltered  and  concealed  him  in  the  woods  on  Saturday,  was  not 


116 

merely  a  suspicious  person,  but  was,  in  fact,  the  murderer  and  assassin 
of  Abraham  Lincoln.  While  I  deem  it  my  duty  to  say  here,  as  I  said 
before,  when  these  declarations  uttered  by  the  accused  on  Sunday, 
the  16th,  to  Gardner  and  George  D.  Mudd,  were  attempted  to  be 
offered  on  the  part  of  the  accused,  that  they  are  in  no  sense  evi- 
dence, and  by  the  law  were  wholly  inadmissible,  yet  I  a  tate  it  as  my 
conviction  that,  being  upon  the  record  upon  motion  of  the  accused 
himself,  so  far  as  these  declarations  to  Gardner  and  George  D.  Mudd 
go,  they  are  additional  indications  of  the  guilt  of  the  accused,  in 
this,  that  they  are  manifestly  suppressions  of  the  truth  and  sugges- 
tions of  falsehood  and  deception  ;  they  are  but  the  utterances  and 
confessions  of  guilt. 

To  Lieutenant  Lovett,  Joshua  Lloyd,  and  Simon  Gavican,  who,  in 
pursuit  of  the  murderer,  visited  his  house  on  the  18th  of  April,  the 
Tuesday  after  the  murder,  he  denied  positively,  upon  inquiry,  that 
two  men  had  passed  his  house,  or  had  come  to  his  house  on  the 
morning  after  the  assassination.  Two  of  these  witnesses  swear  posi- 
tively to  his  having  made  the  denial,  and  the  other  says  he  hesitated 
to  answer  the  question  he  put  to  him ;  all  of  them  agree  that  he 
afterwards  admitted  that  two  men  had  been  there,  one  of  whom  had 
a  broken  limb,  which  he  had*  set;  and  when  asked  by  this  witness 
who  that  man  was.  he  said  he  did  not  know — that  the  man  was  a 
stranger  to  him,  and  that  the  two  had  been  there  but  a  short  time. 
Lloyd  asked  him  if  he  had  ever  seen  any  of  the  parties,  Booth, 
Herold  and  Surratt,  and  he  said  he  had  never  seen  them;  while  it 
is  positively  proved  that  he  was  acquainted  with  John  H.  Surratt, 
who  had  been  in  his  house;  that  he  knew  Booth,  and  had  introduced 
Booth  to  Surratt  last  winter.  Afterwards,  on  Friday,  the  21st,  he  ad- 
mitted to  Lloyd  that  he  had  been  introduced  to  Booth  last  fall, 
and  that  this  man,  who  came  to  his  house  on  Saturday,  the  15th,  re- 
mained there  from  about  4  o'  clock  in  the  morning  until  about  4  in  the 
afternoon;  that  one  of  them  left  his  house  on  horseback,  and  the  other 
walking.  In  the  first  conversation  he  denied  ever  having  seen  these 
men. 

Colonel  Wells  also  testifies  that,  in  his  conversation  with  Dr.  Mudd 
on  Friday,  the  21st,  the  prisoner  said  that  he  had  gone  to  Bryan- 
town,  or  near  Bryantown,  to  see  some  friends  on  Saturday,  and  that 
as  he  came  back  to  his  own  house  he  saw  the  person  he  afterwards 
supposed  to  be  Herold  passing  to  the  left  of  his  house  towards  the 
barn,  but  that  he  did  not  see  the  other  person  at  all  after  he  left  him 
in  his  own  house,  about  1  o'clock.  If  this  statement  be  true,  how 


117 

did  Dr.  Mudd  see  the  same  person  leave  his  house  on  crutches  ?  He 
further  stated  to  this  witness  that  he  returned  to  his  own  house  about 
4  o'clock  in  the  afternoon;  that  he  did  not  know  this  wounded  man; 
said  he  could  not  recognize  him  from  the  photograph  which  is  of 
record  here,  but  admitted  that  he  had  met  Booth  some  time  in  No- 
vember, when  he  had  some  conversation  with  him  about  lands  and 
horses;  that  Booth  had  remained  with  him  that  night  in  November, 
and  on  the  next  day  had  purchased  a  horse.  He  said  he  had  not 
again  seen  Booth  from  the  time  of  the  introduction  in  November  up 
to  his  arrival  at  his  house  on  the  Saturday  morning  after  the  assas- 
sination. Is  not  this  a  confession  that  he  did  see  John  Wilkes  Booth 
on  that  morning  at  his  house,  and  knew  it  was  Booth  ?  If  he  did  not 
know  him,  how  came  he  to  make  this  statement  to  the  witness  :  that 
"he  had  not  seen  Booth  after  November  prior  to  his  arrival  there 
on  the  Saturday  morning?" 

He  had  said  before  to  the  same  witness,  he  did  not  know  the 
wounded  man.  He  said  further  to  Colonel  Wells,  that  when  he  went 
up  stairs  after  their  arrival,  he  noticed  that  the  person  he  supposed  to 
be  Booth  had  shaved  off  his  moustache.  Is  it  not  inferable  from  this 
declaration  that  he  tJien  supposed  him  to  be  Booth  ?  Yet  he  declared 
the  same  afternoon,  and  while  Booth  was  in  his  own  house,  that  Booth 
was  the  murderer  of  the  President.  One  of  the  most  remarkable 
statements  made  to  this  witness  by  the  prisoner  was  t  hat  he  heard  for 
the  first  time  on  Sunday  morning,  or  late  in  the  evening  of  Saturday, 
that  the  President  had  been  murdered  !  Prom  whom  did  he  hear 
it?  The  witness  (Colonel  Wells)  volunteers  his  "impression"  that 
Dr.  Mudd  had  said  he  had  heard  it  after  the  persons  had  left  his 
house.  If  the  "impression"  of  the  witness  thus  volunteered  is  to  be 
taken  as  evidence — and  the  counsel  for  the  accused,  judging  from  their 
manner,  seem  to  think  it  ought  to  be — let  this  question  be  answered  : 
how  could  Dr.  Mudd  have  made  that  impression  upon  anybody  truth- 
fully, when  it  is  proved  by  Farrell  and  Hardy  that  on  his  return 
from  Bryantown,  on  Saturday  afternoon,  he  not  only  stated  that  the 
President  Mr.  Seward  and  his  son  had  been  assassinated,  but  that 
Boyle  had  assassinated  Mr.  Seward,  and  Booth  had  assassinated  the 
President  ?  Add  to  this  the  fact  that  he  said  to  this  witness  that  he  left 
his  own  house  at  1  o'clock,  and  when  he  returned  the  men  were  gone, 
yet  it  is  in  evidence,  by  his  own  declarations,  that  Booth  left  his  house 
at  four  o'clock  on  crutches,  and  he  must  have  been  there  to  have  seen 
it,  or  he  could  not  have  known  the  fact. 

Mr.  Williams  testifies  that  he  was  at  Mudd's  house  on  Tuesday,  the 


118 

'18th  of  April,  when  he  said  that  strangers  had  not  been  that  way,  and 
also  declared  that  he  heard,  for  the  first  time,  of  the  assassination  of 
the  President  on  Sunday  morning,  at  church.  Afterwards,  on  Friday, 
the  2 1st,  Mr.  Williams  asked  him  concerning  the  men  who  had  been  at 
his  house,  one  of  whom  had  a  broken  limb,  and  he  confessed  they  had 
been  there.  Upon  being  asked  if  they  were  Booth  and  Herold,  he 
said  they  were  not — that  he  knew  Booth.  1  think  it  is  fair  to  conclude 
that  he  did  know  Booth,  when  we  consider  the  testimony  of  Weich- 
mann,  of  Norton,  of  Evans,  and  all  the  testimony  just  referred  to, 
wherein  he  declares,  himself,  that  he  not  only  knew  him,  but  that  he 
had  lodged  with  him,  and  that  he  had  himself  gone  with  him  when 
he  purchased  his  horse  from  Gardner  last  fall,  for  the  very  purpose 
of  aiding  the  flight  of  himself,  or  some  of  his  confederates. 

All  these  circumstances  taken  together,  which,  as  we  have  seen 
upon  high  authority,  are  stronger  as  evidences  of  guilt  than  even  di- 
rect testimony,  leave  no  further  room  for  argument,  and  no  rational 
doubt  that  Doctor  Samuel  A.  Mudd  was  as  certainly  in  this  conspiracy 
as  were  Booth  and  Herold,  whom  he  sheltered  and  entertained;  re- 
ceiving them  under  cover  of  darkness  on  the  morning  after  the  assas- 
sination, concealing  them  throughout  that  day  from  the  hand  of  of- 
fended justice,  and  aiding  them,  by  every  endeavor,  to  pursue  their 
way  successfully  to  their  co-conspirator,  Arnold,  at  Fortress  Monroe, 
and  in  which  direction  they  fled  until  overtaken  and  Booth  was  slain. 

We  next  find  Herold  and  his  confederate  Booth,  after  their  de- 
parture from  the  house  of  Mudd,  across  the  Potomac  in  the  neigh- 
borhood of  Port  Conway,  on  Monday,  the  24th  of  April,  conveyed  in 
a  wagon.  There  Herold,  in  order  to  obtain  the  aid  of  Captain  Jett, 
Ruggles,  and  Bainbridge,  of  the  confederate  army,  said  to  Jett,  "  We 
are  the  assassinators  of  the  President  ;"  that  this  was  his  brother 
with  him,  who,  with  himself,  belonged  to  A.  P.  Hill's  corps  ;  that 
his  brother  had  been  wounded  at  Petersburg ;  that  their  names  were 
Boyd.  He  requested  Jett  and  his  rebel  companions  to  take  them 
out  of  the  lines.  After  this  Booth  joined  these  parties,  was  placed 
on  Ruggles's  horse,  and  crossed  the  Rappahannock  river.  They 
then  proceeded  to  the  house  of  Garrett,  in  the  neighborhood  of  Port 
Royal,  and  nearly  midway  between  Washington  city  and  Fortress 
Monroe,  where  they  were  to  have  joined  Arnold.  Before  these  rebel 
guides  and  guards  parted  with  them,  Herold  confessed  that  they  were 
travelling  under  assumed  names — that  his  own  name  was  Herold,  and 
that  the  name  of  the  wounded  man  was  John  Wilkes  Booth,  "who 
had  killed  the  President."  The  rebels  left  Booth  at  Garrett' s,  where 


119 

Herold  revisited  him  from  time  to  time,  until  they  were  captured 
At  2  o'clock  on  Wednesday  morning,  the  26th,  a  party  of  United 
States  officers  and  soldiers  surrounded  Garrett's  barn  where  Booth 
and  Herold  lay  concealed,  and  demanded  their  surrender.  Booth 
cursed  Herold,  calling  him  a  coward,  and  bade  him  go,  when  Herold 
came  out  and  surrendered  himself,  was  taken  into  custody,  and  is 
now  brought  into  court.  The  barn  was  then  set  on  fire,  when  Booth 
sprang  to  his  feet,  amid  the  flames  that  were  kindling  about  him, 
carbine  in  hand,  and  approached  the  door,  seeking,  by  the  flashing 
light  of  the  fire,  to  find  some  new  victim  for  his  murderous  hand, 
when  he  was  shot,  as  he  deserved  to  be,  by  Sergeant  Corbett,  in 
order  to  save  his  comrades  from  wounds  or  death  by  the  hands  of 
this  desperate  assassin.  Upon  his  person  was  found  the  following 
bin  of  exchange : 

"No.  1492.  The  Ontario  Bank,  Montreal  Branch.  Exchange 
for  £6 1  12.s.  10d.  Montreal,  27th  October,  1864.  Sixty  days  after 
sight  of  this  first  of  exchange,  second  and  third  of  the  same  tenor 
and  date,  pay  to  the  order  of  J.  Wilkes  Booth  £61  12s.  10d  sterling, 
value  received,  and  charge  to  the  account  of  this  office.  H.  Stanus, 
manager.  To  Messrs.  Glynn,  Mills  &  Co.,  London." 

Thus  fell,  by  the  hands  of  one  of  the  defenders  of  the  republic,  this 
hired  assassin,  who,  for  a  price,  murdered  Abraham  Lincoln,  bearing 
upon  his  person,  as  this  bill  of  exchange  testifies,  additional  evidence 
of  the  fact  that  he  had  undertaken,  in  aid  of  the  rebellion,  this  work 
of  assassination  by  the  hands  of  himself  and  his  confederates,  for  such 
sum  as  the  accredited  agents  of  Jefferson  Davis  might  pay  him  or 
them,  out  of  the  funds  of  the  confederacy,  which,  as  is  in  evidence, 
they  had  in  "any  amount"  in  Canada  for  the  purpose  of  rewarding 
conspirators,  spies,  poisoners,  and  assassins,  who  might  take  service 
under  their  false  commissions,  and  do  the  work  of  the  incendiary  and 
the  murderer  upon  the  lawful  representatives  of  the  American  people, 
to  whom  had  been  intrusted  the  care  of  the  republic,  the  mainten- 
ance of  the  Constitution,  and  the  execution  of  the  laws. 

The  court  will  remember  that  it  is  in  the  testimony  of  Merritt  and 
Montgomery  and  Conover,  that  Thompson,  and  Sanders,  and  Clay, 
and  Cleary,  made  their  boasts  that  they  had  money  in  Canada  for  this 
very  purpose.  Nor  is  it  to  be  overlooked  or  forgotten  that  the  officers 
of  the  Ontario  Bank  at  Montreal  testify  that  during  the  current  year 
of  this  conspiracy  and  assassination  Jacob  Thompson  had  on  deposit 
in  that  bank  the  sum  of  six  hundred  and  forty-nine  thousand  dollars, 
and  that  these  deposits  to  the  credit  of  Jacob  Thompson  accrued 


120 

from  the  negotiation  of  bills  of  exchange  drawn  by  the  Secretary  of 
the  Treasury  of  the  so-called  Confederate  States  on  Frazier,  Trenholm 
&  Co.,  of  Liverpool,  who  were  known  to  be  the  financial  agents  of  the 
Confederate  States.  With  an  undrawn  deposit  in  this  bank  of  four 
hundred  and  fifty-five  dollars,  which  has  remained  to  his  credit  since 
October  last,  and  with  an  unpaid  bill  of  exchange  drawn  by  the  same 
bank  upon  London,  in  his  possession  and  found  upon  his  person,  Booth 
ends  his  guilty  career  in  this  work  of  conspiracy  and  blood  in  April, 
1865,  as  he  began  it  in  October,  1864,  iu  combination  with  Jefferson 
Davis,  Jacob  Thompson,  George  N.  Sanders,  Clement  C.  Clay,  Wil- 
liam C.  Cleary,  Beverley  Tucker,  and  other  co-conspirators,  making 
use  of  the  money  of  the  rebel  confederation  to  aid  in  the  execution 
and  in  the  flight,  bearing  at  the  moment  of  his  death  upon  his  person 
their  money,  part  of  the  price  which  they  paid  for  his  great  crime, 
to  aid  him  in  its  consummation,  and  secure  him  afterwards  from 
arrest  and  the  just  penalty  which  by  the  law  of  God  and  the  law  of 
man  is  denounced  against  treasonable  conspiracy  and  murder. 

By  all  the  testimony  in  the  case  it  is,  in  my  judgment,  made  as  clear 
as  any  transaction  can  be  shown  by  human  testimony,  that  John 
Wilkes  Booth  and  John  H.  Surratt,  and  the  several  accused,  David  E. 
Herold,  George  A.  Atzerodt,  Lewis  Payne,  Michael  O'Laughlin,  Ed- 
ward Spangler,  Samuel  Arnold,  Mary  E.  Surratt,  and  Samuel  A.  Mudd, 
did,  with  intent  to  aid  the  existing  rebellion  and  to  subvert  the  Con- 
stitution and  laws  of  the  United  States,  in  the  month  of  October  last 
and  thereafter,  combine,  confederate,  and  conspire  with  Jefferson 
Davis,  George  N.  Sanders,  Beverley  Tucker,  Jacob  Thompson,  Wil- 
liam C.  Cleary,  Clement  C.  Clay,  George  Harper,  George  Young, 
and  others  unknown,  to  kill  and  murder,  within  the  military  depart- 
ment of  Washington,  and  within  the  intrenched  fortifications  and 
military  lines  thereof,  Abraham  Lincoln,  then  President  of  the  United 
States  and  commander-in-chief  of  the  army  and  navy  thereof;  Andrew 
Johnson,  Vice  President  of  the  United  States;  William  H.  Seward, 
Secretary  of  State ;  and  Ulysses  S.  Grant,  lieutenant  general,  in 
command  of  the  armies  of  the  United  States ;  and  that  Jefferson  Davis, 
the  chief  of  this  rebellion,  was  the  instigator  and  procurer,  through 
bis  accredited  agents  in  Canada,  of  this  treasonable  conspiracy. 

It  is  also  submitted  to  the  court,  that  it  is  clearly  established  by 
the  testimony  that  John  Wilkes  Booth,  in  pursuance  of  this  conspi- 
racy, so  entered  into  by  him  and  the  accused,  did,  on  the  night  of 
the  14-th  of  April,  1865,  within  the  military  department  of  Washington, 


121 

and  the  intrenched  fortifications  and  military  lines  thereof,  and  with 
the  intent  laid,  inflict  a  mortal  wound  upon  Abraham  Lincoln,  then 
President  and  Commander-in-chief  of  the  army  and  navy  of  the  United 
States,  whereof  he  died;  that  in  pursuance  of  the  same  conspiracy 
and  within  the  said  department  and  intrenched  lines,  Lewis  Payne 
assaulted,  with  intent  to  kill  and  murder,  William  H.  Seward,  then 
Secretary  of  State  of  the  United  States;  that  Qeorge  A.  Atzerodt,  in 
pursuance  of  the  same  conspiracy,  and  within  the  said  department, 
laid  in  wait,  with  intent  to  kill  and  murder  Andrew  Johnson,  then 
Vice  President  of  the  United  States;  that  Michael  O'Laughlin,  within 
said  department,  and  in  pursuance  of  said  conspiracy,  laid  in  wait  to 
kill  and  murder  Ulysses  S.  Grant,  then  in  command  of  the  armies  of 
the  United  States;  and  that  Mary  E.  Surratt,  David  E.  Herold, 
Samuel  Arnold,  Samuel  A.  Mudd,  and  Edward  Sparigler  did  en- 
courage, aid,  and  abet  the  commission  of  said  several  acts  in  the 
prosecution  of  said  conspiracy. 

If  this  treasonable  conspiracy  has  not  been  wholly  executed  ;  if  the 
^several  executive  officers  of  the  United  States  and  the  commander  of 
its  armies,  to  kill  and  murder  whom  the  said  several  accused  thus  con- 
federated and  conspired,  have  not  each  and  all  fallen  by  the  hands  of 
these  conspirators,  thereby  leaving  the  people  of  the  United  States 
without  a  President  or  Vice  President;  without  a  Secretary  of  State, 
who  alone  is  clothed  with  authority  by  the  law  to  call  an  election  to 
fill  the  vacancy,  should  any  arise,  in  the  offices  of  President  and  Vice 
President;  and  without  a  lawful  commander  of  the  armies  of  the  re- 
public, it  is  only  because  the  conspirators  were  deterred  by  the  vigi- 
lance and  fidelity  of  the  executive  officers,  whose  lives  were  merci- 
fully protected  on  that  night  of  murder  by  the  care  of  the  Infinite 
Being  who  has  thus  far  saved  the  republic  and  crowned  its  arms  with 
victory. 

If  this  conspiracy  was  thus  entered  into  b?  the  accused;  if  John 
Wilkes  Booth  did  kill  and  murder  Abraham  Lincoln  in  pursuance 
thereof;  if  Lewis  Payne  did,  in  pursuance  of  said  conspiracy,  assault 
with  intent  to  kill  and  murder  William  H.  Seward,  as  stated,  and  if 
the  several  parties  accused  did  commit  the  several  acts  alleged  against 
them  in  the  prosecution  of  said  conspiracy,  then,  it  is  the  law  that 
all  the  parties  to  that  conspiracy,  whether  present  at  the  time  of  its 
execution  or  not,  whether  on  trial  before  this  court  or  not,  are  alike 
guilty  of  the  several  acts  done  by  each  in  the  execution  of  the  com- 
mon design.  What  these  conspirators  did  in  the  execution  of  this 
conspiracy  by  the  hand  of  one  of  their  co-conspirators  they  did  them- 
9  B 


122 

selves  ;  his  act,  done  in  the  prosecution  of  the  common  design,  was 
the  act  of  all  the  parties  to  the  treasonable  combination,  because  done 
in  execution  and  furtherance  of  their  guilty  and  treasonable  agree- 
ment. 

As  we  have  seen,  this  is  the  rule,  whether  all  the  conspirators  are 
indicted  or  not  ;  whether  they  are  all  on  trial  or  not.  "It  is  not 
material  what  the  natprc  of  the  indictment  is,  provided  the  offence 
involve  a  conspiracy.  Upon  indictment  for  murder,  for  instance,  if 
it  appear  that  others,  together  with  the  prisoner,  conspired  to  per- 
petrate the  crime,  the  act  of  one  done  in  pursuance  of  that  intention 
world  be  evidence  against  the  rest."  (1  Whar.,  700.)  To  the  same 
effect  are  the  words  of  Chief  Justice  Marshall,  before  cited,  that  who- 
ever leagued  in  a  general  conspiracy,  performed  any  part,  however 
MINUTE,  or  however  EEMOTE,  from  the  scene  of  action,  are  guilty  as 
principals.  In  this  treasonable  conspiracy,  to  aid  the  existing  armed 
rebellion,  by  murdering  the  executive  officers  of  the  United  States 
and  the  commander  of  its  armies,  all  the  parties  to  it  must  be  held  as 
principals,  and  the  act  of  one  in  the  prosecution  of  the  common  design 
the  act  of  all. 

I  leave  the  decision  of  this  dread  issue  with  the  court,  to  which 
alone  it  belongs.  It  is  for  you  to  say,  upon  your  oaths,  whether  the 
accused  are  guilty. 

I  am  not  conscious  that  in  this  argument  I  have  made  any  erro- 
neous statement  of  the  evidence,  or  drawn  any  erroneous  conclusions; 
yet  I  pray  the  court,  out  of  tender  regard  and  jealous  care  for  the 
rights  of  the  accused,  to  see  that  no  error  of  mine,  if  any  there  be, 
shall  work  them  harm.  The  past  services  of  the  members  of  this 
honorable  court  give  assurance  that,  without  fear,  favor,  or  affection, 
they  will  discharge  with  fidelity  the  duty  enjoined  upon  them  by 
their  oaths.  Whatever  else  may  befall,  I  trust  in  God  that  in  this,  as 
in  every  other  American  court,  the  rights  of  the  whole  people  will 
be  respected,  and  that  the  Republic  in  this,  its  supreme  hour  of  trial, 
will  be  true  to  itself  and  just  to  all — ready  to  protect  the  rights  of 
the  humblest,  to  redress  every  wrong,  to  avenge  every  crime,  to 
vindicate  the  majesty  of  law,  and  to  maintain  inviolate  the  Constitu- 
tion, whether  assailed  secretly  or  openly,  by  hosts  armed  with  gold, 
or  armed  with  steel. 


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ID 


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